1. This reference to the special Bench was necessitated in consequence of a difference of opinion between my lord the Chief Justice and my learned brother Justice Das who first heard the appeal as a Division Bench.
2. The essential facts have been fully set out in the judgment of my learned brother Justice Das and it is unnecessary to repeat them at length. Appellant Radhi Bewa (who was defendant No. 2 in the original suit) is the widow of one Bairagi who died sometime in 1932 or 1934. Respondent Bhagawan (plaintiff no. 1) is the own brother of Batragi and respondents Brundaban and Hrudanand (plaintiffs 2 and 3) are the sons of another brother of Bhagawan and Bairagi named Natha who is dead. There was another brother of Bhagawan named Bharat who died leaving a widow named Keluni (defendant no. 1) and a daughter (defendant no 3.) They were also parties to the litigation in the early stages and it appears that they eventually compromised with the plaintiffs. The whole case proceeded on the assumption that the Mitakshara coparcenary which originally consisted of Bhagawan and his three brothers Natha, Bharat and Bairagi remained in tact even after the death of Natha, Bharat and Bairagi and that at present the surviving coparceners are Bhagawan on the one hand and Natha's two sons Brundaban and Hrudanand on the other. They, therefore, claimed the suit property (which are agricultural lands) as the surviving members of the coparcenary and urged that appellant Radhi Bewa who is the widow of a deceased coparcener whose death took place prior to 1937 was entitled only to maintenance. Radhi Bewa's main contention however was that though she became a widow prior to 1937 there was nothing in the provisions of the Hindu Women's Rights to Property Act, 1937 to disentitle her from claiming an interest in the property of her deceased husband under Sub-section (2) of Section 3 of that Act in view of the fact that the coparcenary has yet been disrupted. She, therefore, claimed the share of her deceased husband. My lord the Chief Justice took the view that though the Hindu Women's Rights to Property Act, 1937 (Act XVIII of 1937) as amended by the amending Act of 1938 (Act XI of 1938) was not retrospective in the broad sense in which it is ordinarily understood yet there was nothing in that Act to prevent the widow of a deceased coparcener who died prior to 1937 leaving an interest in the joint family from claiming that interest when that interest had not vested in any person either by partition amongst the coparceners or otherwise.
3. The Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as the Act) as amended by the Act of 1938 was held by the Federal Court in Hindu Women's Rights to Property Act, 1937, In the matter of A. I. R. (28) 1941 P. C 72, to be inapplicable to agricultural lands. Thereupon the Orissa Legislature passed an Act in 1944 (Orissa Act V of 1944), extending the Act to agriculture lands in Orissa and giving retrospective effect to the same. Before the Division Bench it was contended, relying on the word 'always' in Section 2 of the Orissa Act, that the Orissa Act had unlimited retrospective effect. But this contention was rightly given up by Mr. Mohanty on behalf of the appellants at the time of arguing the appeal. The retrospectivity of the Orissa Act extends to the date of the commencement of the Central Act of 1937. It is, therefore, unnecessary to discuss the true meaning of the expression 'always' occurring in the Orissa Act which has been dealt with at some length in the judgments of the learned Judges who constituted the Division Bench. The sole question for consideration by the Special Bench is whether the benefits of Sub-section (2) of Section 3 of the Act are available to a Hindu woman who became a widow prior to the passing of the Act but whose husband's interest in the joint family property had not vested in any other person either by partition of the joint family property or by valid alienation. A decision of this question depends on a construction of Section 3 (2) of the Act along with other provisions of the Act such as Sections 2, 4 and 5. Though the Act is a small one consisting of five sections its construction is by no means easy and as pointed out in Mayne's Hindu Law, 11th Edition, at page 701, the Act even after the amendment of 1938 'remains defective and obscure in some respects.' The difficulties in construing that Act have also been fully discussed at pages 4 to 10 of the report of the Hindu Law Committee, 1941. I must, therefore, confess to a feeling of diffidence in approaching the subject especially when my lord the Chief Justice and my learned brother Justice Das for both of whom I have the greatest respect have taken two divergent views.
4. Before discussing the relevant provisions of the Act I may reiterate some well-known rules of statutory construction which bear repetition.
'The words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained.' (Maxwell, 9th edition, page 55). To these rules must be added the special rules of beneficial construction which are applicable to remedial Acts.
'Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words if they are fairly susceptible of it. .The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words,' ('ibid', page 71.)
At the Bar it was faintly contended that the Act was not a remedial one. This argument apparently overlooks the following observations of the Chief Justice of India in A. I. R. (28) 1941 P. C. 72 at p. 76:
'The underlying purpose of the Act is plainly stated in its Preamble: 'Whereas it is expedient to amend the Hindu Law to give better rights to women in respect of property.' It is, therefore, a remedial Act seeking to remove or to mitigate what) the Legislature presumably regarded as a mischief; and as such it ought to receive a beneficial interpretation.'
The Chief Justice of India relied on the following passage in 'Cover's case'; In re, Coal Gas Co., (1875) 1 Ch. D. 182:
'The Act must be construed so as to give the most complete remedy which the phraseology will permit.'
5. I may now quote Sections 2 to 5 of the Act.
'Section 2. Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate.
'Section 3 (1). When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together shall, subject to the provisions of Sub-section (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son;
Provided further that the same provision shall apply 'mutatis mutandis' to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time or his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Women's Estate, provided, however, that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.
'Section 4. Nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act.
Section 5. For the purposes of this Act, a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.'
The original Act of 1937 did not contain Section 5 and in Sub-section (2) of Section 3 of that Act the word 'intestate' was found after the word 'dies. By the amending Act of 1938, the word 'intestate' was omitted from Sub-section (2) of Section 3 as 'inept' and Section 5 was newly inserted so as to give the expression 'die intestate' an extended meaning.
6. Beading Sub-section (2) of Section 3 as it now stands it will be noticed that there is nothing in it to indicate that the death of the person referred to therein must have taken place prior to the commencement of the Act. All that it says is that when a Hindu goyerned by a particular school of Hindu law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Subsection (3), have in the property the same interest s he himself had. The date of widowhood is not referred to at all. It was, however, contended that the expressions 'dies' and 'at the time of his death' indicate that the Legislature was thinking of deaths which might take place after the commencement of the Act. This argument, however, overlooks the well-known rule of statutory drafting.
'A statute is to be regarded as always speaking' ('Halsbury' Vol. 31, 2nd Edition, page 572.)
The tense and the mood of the verb used in the Act are such that whenever the Act is taken up for consideration it should appear as if the Act is then speaking. Therefore merely because the verb 'dies' is in the present tense it is not correct to say that the Act refers to the present and to the future and not to the past. Moreover, the subjunctive mood has been used in a conditional sense and the word 'when' is not used as indicating time factor but as indicating a condition. It is true that the word 'when' may sometimes be indicative of the time factor but here it appears to have the same meaning as 'where.' Thus in Section 2, the words used are
'The provisions of Section 3 shall apply where a Hindu dies intestate.'
Thus 'when' and 'where' have been used indiscriminately in the Act to convey the meaning 'in cases in which' (see Sir A. Alison's Legislative Drafting and Forms, 4th Edition, p. 117.) I would paraphrase Sub-section (2) as follows:
'In cases in which a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law leaves an interest in a Hindu joint family property at the time of his death, his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had.'
The words 'at the time of his death' have been specially insested to restrict the application of this Sub-section to the interest which he then leaves in the Hindu joint family property whatever might have been his interest prior to his death and they have nothing to do with the prospective or retrospective application of the Act. The most decisive argument in favour of the view that the word 'dies' does not necessarily indicate prospectivity is found in Section 4 of the Act itself. That section expressly says that nothing in the Act shall apply to the property of any Hindu dying intestate before the commencement of the Act. It, therefore, expressly bars giving restrospective effect to the property of a Hindu dying intestate before the commencement of the Act. The word 'dies' occurs in Sub-section (1) of Section 3 which deals with the separate property of a Mitakshara Hindu or the property of a Dayabhaga Hindu dying intestate. If the expression 'dies' in Sub-section (2) is itself sufficient to bar retrospective operation, by parity of reasoning the same expression in Sub-section (1) of Section 3 should be a bar to retrospective construction and there would have been absolutely no need for the Legislature to insert a new section like Section 4. It was, however, urged that Section 4 might have been inserted by way of abundant caution and that it should not affect the reasonable inference arising from the tense of the verb 'dies.' I am, however, unable to accept the view that a section like Section 4 which expressly bars retrospective effect in certain cases can be said to have been inserted by way of abundant caution. It seems to have been inserted mainly because the Legislature fully realised that if Section 3 (1) stood by itself it might be reasonably construed as retrospective to a limited extent and with a view to remove all possibility of such a construction it found it necessary to provide a new statutory section. Thus taking into consideration the rule of drafting regarding the use of the tense and mood and the implications arising out of the language used in Sub-sections (1) and (2) of Section 3 read with Section 4 of the Act it seems clear that there Is nothing in Sub-section (2) of Section 3 to limit its application to the widow of a Hindu who died after the commencement of the Act.
7. There is ample authority for such a construction. As pointed out by my lord the Chief Justice the Privy Council while construing the words 'dying Intestate' occurring in the Hindu Law of Inheritance (Amending Act of 1929) pointed out that those words do not necessarily connote the future tense but that they are descriptive of the status of the deceased and have no reference and were not intended to have any reference to the time Of the death of a Hindu male. Similarly in 'The Queen v. St. Mary Whitechapel', (1848) 116 E R 311, the following provisions of Section 2 of Stat. 9 & 10 Viet. c. 63 came up for consideration.
'No woman residing in any parish with her husband at the time of his death shall be removed ...................................'
The argument that the word 'residing' in that section though connected with the words 'shall be removed' is not meant to confine the enactment to future residence but that it is a descriptive word haying the effect of adjective and referable to any time was accepted by Lord Denman, C. J., word held that though the Act was prospective In its operation as it related to future removals only there was nothing to prevent a construction by which 'a part of the requisites for its action is drawn from time antecedent to its passing.'
In 'The Queen v. Birwistle', (1889) 58 L J M C 158, the decision turned on the construction of the following extract from Section 1 of 49 & 50 of Viet. C. 52.
'From and after the passing of this Act it shall tie lawful for any married woman, who shall have been deserted by her husband to summon Her husband before any two Justices, etc. etc.'
'The question for consideration was that section would apply to desertions which took place rior to the commencement of the Act also. Lord Coleridge, C.J, answered this question in the affirmative saying:
'Scores of Acts are retrospective, and may without express words be taken to be retrospective, since they are passed to supply a cure to an existing evil. This Act was intended to afford married women a remedy for desertion, and desertion may have commenced before the Act..............'
The recent judgment of Viswantha Sastri, J., in Lakshmi Ammal v. Narayanaswami', AIR (37) 1950 Mad 321, while construing the words 'if he marries again' in Clause (4) of Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 is also very instructive. The learned Judge held that the said expression is not limited to second marriages which might take place after the coming ' to force of the Act but would apply to such marriages which took place prior to the passing of the Act and the words were
'Merely descriptive of the position of the husband as a twice married man at the date when the wife's claim for separate maintenance is made Hinder the Act................'
8. It is unnecessary to cite other authorities. Even on a fair construction of Sub-section (2) of Section 3 it cannot be said that there is any indication therein barring its application to the widows of those Hindus who died before the commencement of the Act. When there is no such indication there seems to be no reason as to why the benefit of that Sub-section should be denied to those classes of persons who became widows prior to the commencement of the Act unless such a construction is inconsistent with the other provisions of the Act or offends against other well known canons of the statutory construction. Such a construction is strictly speaking not giving retrospective effect to the statute as ordinarily understood but to quote the words of Lord Denman, C. J., (1848) 116 E R 811, to apply the Act prospectively though
'a part of the requisites for its action is drawn from time antecedent to its passing.'
9. It was contended that Section 4 read with Section 5 left no room for doubt that the whole of Section 3 including Sub-section (2) could not apply to the property of a Hindu who died before the commencement of the Act. It will be noticed that Section 4 refers to the property of, a Hindu dying intestate. Sub-section (1) of Section 3 expressly refers to the property of such a Hindu and that Sub-section has therefore clearly no retrospective operation. But) Sub-section (2) does not refer either to 'property' or to a Hindu who 'dies intestate.' It refers only to the 'interest' of a Hindu in the joint family. The word 'intestate' which was originally inserted in that. Sub-section was deliberately omitted by the Legislature in 1938 as 'inept.' That is to say, the Legislature considered that it will not be appropriate to say that a Hindu governed by the Mitakshara who has an interest in the joint family property can be said to 'die intestate' in respect of that interest because he has no right to make a testamentary disposition. If, therefore, it will not be good English to say that such a Hindu died 'intestate' how can it be said that Section 4 applies to him also? In other words, if the word 'intestate' is inappropriate in Sub-section (2) of Section 3 and is deliberately omitted from that Sub-section of retained in Section 4 it necessarily follows that Section 4 cannot apply to those Hindus referred to in Sub-section (2) of Section 3. Moreover, in ordinary language when a person is said to 'die intestate' the reference is to a person who having the capacity to make a will either omits to execute any will at all or executes a will which is found to be invalid due to other causes. It will, therefore, be not good English to say that a 'minor died intestate' or else that a 'congenital idiot died intestate' because neither of them has the capacity to make a will. The position of a coparcener in an undivided Hindu family is of a similar type in respect of his interest in the joint family property and Section 4 cannot be applicable to him in respect of that interest.
10. It was, however, contended that even though in terms Section 4 may not be applicable to a coparcener of an undivided Hindu joint family, by virtue of the extended definition given in Section 5 it became so applicable. It was urged that the words in Section 5 'he has not made a testamentary disposition which is capable of taking effect' would also include those cases where an undivided Mitakshara Hindu does not make any will at all or makes a will which on account of his incapacity is incapable of taking effect. I would have been inclined to accept this argument but for the deliberate omission of the word 'intestate' from subsection (2) of section 3 by the Legislature in 1938. If intestacy and the interest of a Mitakshara Hindu joint family property are incongruous in one sub-section of the Act they must be incongruous in all other sections of the Act because it is a well-known rule of statutory construction that words and phrases should be given the same meaning throughout the Act, unless there is any repugnancy in the context. Section 5 should therefore be construed to refer to those cases where a person having the. capacity to make a will executes a will which due to other reasons such as failure to comply with the formalities or contravention of the law of transfer of property is rendered invalid in whole or in part in respect of a portion of the property. The necessity for inserting section 5 was obvious. Ordinarily, the word 'intestate' would mean intestacy in fact; that is to say, the fact that no will was executed by a person capable of executing a will. But legal intestacy goes further and includes those cases where a will though executed in fact is declared to be invalid in whole or in part. If section 5 were not there then difficulties might have arisen in construing section 4 in those cases where there is intestacy in law though not in fact and it was to remove this difficulty that section 5 was inserted adopting the language of section 30 of the Indian Succession Act. If section 5 were meant to include those cases of persons who had no capacity to make a will at all the necessity for omitting the word 'intestate' from section 3(2) would not have arisen.
11. One important argument against this construction is that it may lead to the anomalous result of section 2 being not applicable to subsection (2) of section 3. This argument appears to have weighed very much with my learned brother Justice Das. Section 2 undoubtedly refers to a Hindu who dies intestate and it says that the devolution of property as described in section 3 shall apply to the property of such a Hindu 'notwithstanding any rule of Hindu law or custom to the contrary'. It is argued that unless this controlling section 2 is made applicable to subsection (2) of section 3 difficulties of construction would arise when there is a conflict between section 3(2) on the one hand and any provision of Hindu Law or custom to the contrary on the other. There are two answers to this argument. The first one is that given by Srinivasa lyengar in his 10th edition of Mayne's Hindu Law at page 716 and reiterated in the 11th edition of the same book at page 704. There, it has been pointed out that: 'as intestacy cannot by any legal possibility be a condition for the operation of sub-section (2) to section 3 the words 'dies intestate' in section 2 must be treated as a surplusage having no meaning.'
Another reason which I venture to put forward is that section 2 was inserted by way of abundant caution and the full operation of sub-section '2) of section 3 is not in any way affected even if section 2 be completely omitted. The Act purports to be an amendment to the Hindu law. It is well-known that Hindu law consists not only of sacred texts but includes customary law which modifies those texts and the judicial decisions interpreting those texts and recognisirig such custom. When an Act therefore purports to be an amendment to the existing Hindu law it must, to the extent to which it can be reasonably construed, prevail over any existing provision of Hindu law or custom to the contrary. An amending Act ex-hypothesi will be contrary to the existing law which it purports to amend and must prevail notwithstanding any provision to the contrary in the then existing law. Section 3 is a self-contained provision and sub-sections (1) and (2) of that section would prevail by their own force and section 2 was apparently inserted by way of abundant caution. Where custom is saved, there is express provision to that effect in sub-section (4) of section 3. The word 'intestate' in section 2 cannot therefore limit the giving full effect to sub-section (2) of section 3.
12. Another reason which also appears to have weighed very much with my learned brother Justice Das will be clear from the following quotation of his Judgment.
'The quantum of the interest which a widow gets is the same as what the husband had during his life-time and therefore does not fluctuate with reference to any further changes in the constitution of the family. It is also clear that that Interest is measured by what it was when the husband died, since the interest is referred to subsection (3) as 'devolving' on her from her husband and in sub-section (2) as being the same which he had when he died.'
From this premise he infers that the commencement and the quantum of. the widow's interest have reference to the point of time when her husband died and that it is almost impossible to fit in the case of a widow whose husband died prior to the Act, into the framework of section 3 (2). 1 am however unable to find any clear authority to support the view that the quantum of interest which the widow gets is fixed with, reference what her husband had at the time of his death and does not fluctuate. This question is certainly not free from difficulty as pointed out in the 11th edition of Mayne's Hindu Law at pages 710, 711 where the learned editor has observed:
'The anomaly of a widow holding a woman's estate in the undivided property of her husband must necessarily be dealt with as a special case; the interest she takes may well be a fluctuating interest till there is a partition.'
To a similar effect are the following observations at page 334 of the same book.
'While she cannot be in strict sense a coparcener with the other members, her position. will be analogous to that of a member of an undivided family under the Dayabhaga Law with this possible difference that, as she is only to have the 'same interest' as her husband himself had, the share to which she will be entitled at a partition may be liable to the same fluctuation caused by changes in the family as if she occupied the place of her husband or as the share of any member of an undivided Mitakshara family.'
The Madras High Court has also taken the same view in 'Chinniah Chettiar v. Sivagami Achi', I L R (1945) Mad 402. Therefore, even in respect of post-1937 deaths it has been held that the quantum of interest of a Hindu widow is liable to fluctuation until partition. There seems to be thus no legal impossibility in applying section 3(2) to the ease of a widow whose husband died prior to the Act, when joint family property continues intact after the passing of the Act. If there was any valid alienation by the manager of the family or by a coparcener in States like Madras where such alienations are recognised as valid to the extent of his interest, the quantum of interest available to the widow at the time of partition would have to be worked out as if her husband were alive the date of partition while at the same time preserving vested rights which, had accrued to persons before the commencement of the Act.
13. It is true that no statute should be construed retrospectively so as to affect, vested rights I unless such a construction can be justified either by express words or by necessary implication. But the question is what are the vested rights that are adversely affected by the construction suggested in this judgment. It has been, strenuously contended that the rights of the other coparceners in the joint family property are adversely affected. It is unnecessary to elaborate at length the various rights of an individual coparcener in a Hindu joint family until partition. I would content myself with quoting the following observations of the Privy Council in 'Ananta Bhikappa v. Shankar Ramchandra', 70 Ind App 232 at p. 239.
'As Appovier's case made clear, the fraction which is at any time employed to describe the quantum of interest of. a male member of the family 'does not represent, his rights while the family is joint', but the share which he would take if a partition were then to be made. His interest is never static but increases by survivorship as others die and lessens as others enter the family as by birth or adoption.'
A coparcener has undoubtedly an interest in the joint family. But the quantum of his interest at any particular time being indeterminate and inchoate till actual partition it cannot be said that he has any right - much less a vested right - to such a quantum of interest. By applying the Act to widows whose husbands died prior to 1937 the effect may undoubtedly be to reduce the quantum of interest which the other coparceners might have obtained, had they partitioned the property at the time of the deaths of those husbands. But as they had no vested right to that quantum at that time it cannot be said that right was 'adversely' affected by such a construction. Unless it is a well defined right there can be no question of its being either adversely affected or impaired. The rule against retrospective construction (even in a limited sense) has been thus explained in Halsbury, Vol. 31, 2nd edition, page 516.
'The rule, therefore strictly stated applies to rights which are at the moment of enactment matters of active assertion, and not to rights which may thereafter be the subject of litigation'.
How can it be said that the quantum of interest of a coparcener in the coparcenary property is a matter of active assertion until partition? The learned Counsel for the respondent however contended that the other rights of the coparcener in the joint family property such as his right of joint possession and enjoyment etc. fully described in section 235 at page of Mulla's Hindu Law, 10th edition are also adversely affected. I am however unable to understood how any right of a coparcener except the quantum of his interest is adversely affected when the widow of a deceased coparcener is held to have her husband's interest in the property. She is not a stranger but also a member of the joint family and as such is always entitled to maintenance like coparceners themselves. By giving her the same interest in the property which her husband had the joint possession and enjoyment of the property by the other coparceners is not in any way adversely affected. The Karta continues to manage the property as before and the other coparceners' right to claim partition at any time is not affected at all. The coparceners had the privilege (if I may use that expression) of admitting male issues of coparceners alone to an interest in the coparcenary property. The Act by admitting the widows of deceased coparceners also to some interest in the property may be said to have deprived the coparceners of that exclusive privilege of limiting the interest to males alone. But a mere deprivation of privilege cannot be a ground for not giving limited retrospective effect to a statute when the words are capable of such construction. In 'Reynolds v. Attorney General for Nova Scotia' 1896 A C 240, it was held that a mere privilege was not a vested right so as to prevent a court from giving retrospective effect to a statute.
14. The judgment of the Federal Court in 'Umayal Achi v. Lakshmi Achi', A. I. R. (32) 1945 P. C. 25 has been cited at the Bar and emphasis has been laid on the following observations of Varadachariar J. at page 33.
'But that is due to the circumstances that her husband died before the passing of the Act........The possibility of such varying consequences cannot be allowed to control the natural and reasonable interpretation of the Act. It is prima facie prospective....................'
The use of the word 'prima facie' by Varadachariar J. makes it absolutely clear that there is no decision by the Federal Court of this question. This point was not specifically taken up and moreover in that case it could not be taken up because the entire property had vested in a sole coparcener before the commencement of the Act of 1937.
15. To conclude: the Act being a remedial Act there seems no justification for not giving full effect to the words of sub-section (2) of section 3 so as to embrace within its scope persons who became widows not only after the commencement of the Act but also those persons who became widows before the commencement of the Act so long as the interest which their husbands had in the joint family property at the time of their death had not vested in any individual. The tense and mood used by the draftsman in sub-section (2) of section 3 are not at all decisive on the question of prospective construction but are consistent with the alternative construction also. If section 4 be made applicable to sub-section (2) of section 3 there would certainly be a definite bar to giving such a limited retrospective construction to section 3(2) but by deliberately omitting the word 'intestate' from sub-section, (2) of section 3 and retaining it in section 4 the legislature obviously indicated that section 4 should not in any way control sub-section (2) of section 3. Any such construction which would affect vested rights of any person may be open to other objections based on well-known canons of construction. But so long as such vested rights are not affected there seems no justification for depriving one class of widows from the benefits which the Act intended to confer on them.
16. I would therefore, with great respect, agree with the view taken by my Lord the Chief Justice.
17. We have heard elaborate arguments on his reference and I have had the advantage of considering carefully the judgment of my Lord the Chief Justice in the Division Bench and ail the arguments in support of it from the Bar and the Bench and also of reading with close attention the judgment prepared by my learned brother Justice Narasimham. But after giving the matter my best and anxious consideration I regret, with great respect, my disagreement with their views and I feel unable to come to any different conclusion than that which I had reached when I heard the matter as a member of the Division Bench. I am indeed bound to say that I feel reinforced in the view that I have already expressed.
18. In view of the importance of the matter and out of respect for the views of my learned brothers and out of regard for the strenuous arguments advanced at the Bar, I am obliged to deal with the question involved, at some length, even at the possible risk of repetition of portions of my previous judgment.
19. Under Section 3, sub-section (2) of Centra). Act XVIII of 1937, as amended by Central Act XI of 1938, the widow of a coparcener who dies leaving an interest in joint family property gets his interest therein. The question for decision is whether this applies equally to a widow whose husband died prior to the passing of the Act, as it does indisputably to the case of a widow whose husband died after the passing of the Act. It is common ground that the Act is not to be construed as retrospective in operation. But it is argued that it is possible to give prospective operation to it, also in its application to a widow whose husband died before the commencement of the Act. This depends upon a construction of the relevant provisions of the Act itself and upon, the question whether, so construed, it does or does not adversely affect any vested rights which had accrued prior to the commencement of the Act. The feasibility of such a construction depends, largely, on the nature of the interest given to such a widow and the time of the accrual of that interest, generally, under the Article
20. The relevant provisions are sub-sections (2) and (3) of section 3 of the Act. These provisions have come in for consideration before the various High Courts during the thirteen years for which the Act has by now been in force. It is now well settled that the Act has not the effect of introducing the widow as a coparcener into the joint family along with the other coparceners, that the widow gets the interest of her husband by succession as his heir and not by survivorship, but that no disruption of the coparcenary is effected thereby, that the widow holds her interest in the property not as the interest of a tenant-in-common with the coparceners, but as an interest in joint family property, subject to all the normal and well understood incidents relating to ownership of joint family property, viz., its liability to common management by the family manager, its liability for family debts, family expenses, and so forth. These propositions are clearly laid down in A. I. R. (28) 1941 F. C. 72 at p. 74 Col. (2),'Siveshwar Prasad Narain Singh v. Harnarainmal', AIR, (32) 1945 Pat 116; 'Sardambal v. Subbarama Ayyar', AIR (29) 1942 Mad 212; 'Kallian Rai v. Kashinath', AIR (30) 1943 All 188; 'Jadaobai v. Purnmal', AIR (31) 1944 Nag 243; 'Vinod Sagar v. Vishnubhai', AIR (34) 1947 Lah 388; and Radha Ammal v. Commr. of I. T., Madras', 1950-1 Mad L Jour 399 and 'Seethamma v. Veerana Chetty', I LR (1950) Mad 1076. They emerge from the wording of the sub-sections above referred to. The widow gets 'the same interest in the joint family property which the husband had', but the interest which devolves on her is 'the limited interest known as the Hindu Woman's estate'. She gets her interest from her husband by 'devolution'. By the 'devolution' of the interest on her she intercepts the right of survivorship thereto of the other coparceners, including the direct lineal male descendants of the husband himself. She has the right, under Sub-section (3) to obtain separation of her interest by claiming a partition. Her interest is a present interest capable of enjoyment, as such, even without division, and is not dependent upon her enforcing partition. Her interest is, in this respect, unlike that of the mother under the pre-existing law who was entitled to a share only on partition, but who had no right to compel partition and whose right to get a share depended on partition. See 'Pratapmull v. Dhanbati Bibi', AIR (23) 1936 P. C. 20. She can therefore question alienations made or partitions effected behind her back after the right accrues to her. The interest which she gets from her husband, in her hands being the limited interest of a Hindu Woman's estate, is subject to alienation and devolution in the same way. It follows that while her interest is an interest in the joint family property, it is not a coparcenary interest - it is only an ex-coparcenary interest. On her death, her interest in the joint family property, or the share therein which she may take on separation, does not prima facie, revert back to the joint family or coparcenary as such, but goes to the heirs of her husband as the fresh stock of descent. These positions are clearly deducible from the wording of the sub-sections and are substantially supported by the decisions cited above, besides being in complete accord with the closely reasoned views expressed by my Lord the Chief Justice in 'Kunja Sahu v. Bhagaban Mohanty', I. L. R. (1949) 1 Cut. 483, with most of which Justice Panigrahi has agreed.
21. For the purpose of the present discussion, it is of importance to consider at what point of time the right accrues to the widow under the Act. Having regard to the wording of the sub-sections above referred to, there can be no reasonable doubt that the right accrues at the very moment of the husband death. This is indisputably so with reference to the case of a widow whose husband dies after the commencement of the Act, and is quite independent of the correctness or otherwise of the suggested construction - which I shall presently refer to - of the word 'when' occurring at the beginning of -sub-section (2) of section 3 as indicative only of the conditions, for the accrual of the right). The only two possible alternatives, on principle for the commencement of the accrual of the right in the case of such a post-Act widow - if I may use the expression - are either her husband's death itself or the actual partition between the remaining coparceners. But, as has been pointed out already, there is nothing in the Act indicating that the rights of the widow, are to arise only on, or remain in abeyance until, partition. The right accrues therefore at the moment the sole condition for the birth of the right is fulfilled, viz., the death of the husband, having at the time an interest in joint family property. This is also clearly brought out by the use of the words and phrases 'when', 'at the time of his death' and 'the same interest as he himself had' in sub-section (2), and the word 'devolving' in sub-section (3). So far therefore as can be gathered with reference to the wording of sub-sections (2) and (3) of section 3 of the Act, the interest taken by the post-Act widow is, merely an interest in the joint family property, and accruing at the very moment of her husband's death. There is absolutely no reason for thinking that the position is different in respect of the pre-Act widow. in case the Act applies to her.
22. In my previous judgment, as a member of the Division Bench, I stated as follows:
'It is reasonably clear that the commencement and quantum of the widow's interest has reference to a point of time when her husband died and it would also appear that her rights are in respect of the family property as it stood at the time when her husband died. If this is the correct view of the amplitude, quantum, and commencement of the widow's interest, it appears to me to be almost impossible to fit in the case of a widow, whose husband died prior to the Act, into the framework of Section 3, sub-section (2)'.
23. It has been argued before us, on this reference, that this assumption is erroneous. My attention has been drawn to a passage in Mayne's Hindu Law, 11th Edition, p. 710 and to a decision reported in I L R (1945) Mad 402 to the effect that the interest which the widow takes by devolution from her husband is the same fluctuating interest as that of her husband. For the purposes of the present discussnon, it may not be necessary to express any final opinion as to whether those views are correct. But I must point out that the core of the reasoning indicated in the above quotation from my previous judgment is that the widow's interest accrues right at the very moment of her husband's death, - quite independently of the question whether or not the interest is fluctuating - and that, therefore, the case of a widow whose husband died prior to the Act but whose rights came into operation after the commencement of the Act, is incompatible with the wording of the sub-sections quoted above. To counter the argument that the wording in these sub-sections indicate also the time-factor relating to accrual of the right of the widow, my learned brother Justice Narasimham has construed the word 'when' as meaning 'if' and has pointed out the use of 'where' in section 2 of the Act as meaning 'if'. He has also attempted a paraphrase of sub-section (2) of Section 3 in order to support his point of view. But it appears to me, with great respect, that the very use of the word 'where' in a different context and in a different section and the necessity felt by my learned brother to paraphrase in different language what he conceives to be the meaning of sub-section (2) of Section 3 are, to my mind, themselves cogent arguments against the meaning that he would attribute to the sub-section, and demonstrate that it is a forced construction. The construction, so adopted, proceeds on the omission to take note of the use of the important and decisive word 'devolving' occurring in sub-section (3) of section 3.
24. Though as I have already stated the question as to whether the interest that the widow takes, is a fluctuating one, or one denned and determined with reference to a point of time, viz., the date of her husband's death, does not require to be finally decided for the purposes of this case, a consideration of this question helps the discussion and is not out of place. I would, therefore, with very great respect to the learned Editor of Mayne's Hindu Law and the learned Judges in the Madras decision, venture to submit that the view taken as to the fluctuating character of a widow's interest appears to be erroneous. As I have shown above, the interest taken by the widow is not a coparcenary interest but only an interest that had been once a coparcenary interest. The essential characteristics of a coparcenary interest are that it arises by birth and lapses by death, except in so far as such lapse is prevented by the right of representation inhering in the three direct lineal male descendants of the coparcener. The fluctuating nature of a coparcenary interest is merely the result of these characteristics being a common feature of the interest of each and every member of the coparcenary group who between them own the entire family properties. It is obvious from the above that the rights of accrual by survivorship arising there from are mutual. In the case of a widow's interest under the Act, her interest arises not on her birth but on her husband's death. Further, on her own death, the interest does not, prima facie, lapse or revert back to the family, but goes to her husband's separated heirs. Her interest, therefore, does not accrue, on her death to the coparceners. It is difficult therefore to see how the benefit of survivorship can accrue to her own interest on the death of the other coparceners, there being no mutuality. It is also equally difficult to see how her share can be diminished by changes in the family. Some stress has been laid on the phrase in Schedule (1) that the widow shall have the same interest as her husband had. But it is not provided that, in her hands, it shall 'continue' to be the 'same' interest, but on the other hand it is provided in Schedule (3) that in her hands it is 'the interest in Hindu woman's estate'. This has the effect - and it has been so judicially construed - of completely changing the character of the interest in her hands. It is in no sense therefore the 'same' coparcenary interest in her hands, nor even a modified coparcenary interest. This conclusion is in no way affected by the line of decisions which hold that her interest is an interest in joint family property to the incidents thereof until partition. In my view therefore the interest of the widow does not continue in her hands as the 'same' interest of her husband, but was so only at the time of devolution, the word 'same' having reference to the measure and amplitude of the interest and not to the continuance of its equality. It appears to me, to follow, that her interest is not liable to fluctuations arising from the changing circumstances of the coparcenary group with whom she holds the joint family property in common. It must also follow that the quantum of her interest in the joint family must be one that is determined with reference to the time of the accrual of such interest, viz., the death of her husband. This view is in complete accord with what my Lord the Chief Justice has said in I.L.R. (1949) 1 Cut. 483, wherein his Lordship has specifically dissented from the view expressed in I.L.R. (1945) Mad. 402. I have since had the opportunity of reading my Lord's draft judgment on this reference and have considered carefully what his Lordship has said about his previous judgment. I take leave to say with respect that I prefer to follow My Lord's earlier reasoning.
25. At any rate, if the view taken by me above is correct, viz., that the moment of the husband's death is the determining factor at least for the accrual of the widow's interest, if not also for the quantum, etc., thereof (note that this has been assumed to be so in 'Bhagwat Shukul v. Mt. Kaporni', AIR (31) 1944 Pat. 298 at p. 302; A I R (29) 1942 Mad. 212; 'Subba Naicker v. Nallammal', AIR (37) 1950 Mad. 192 at p. 193, and more clearly assumed in I L R (1949) 1 Cut. 483 at pp. 487 to 489), I am unable to see how the case of a widow whose husband died prior to the Act, can be brought within the scope of Sub-section (2) of Schedule , without giving the Act retrospective operation.
26. It has been suggested that the rights of a widow in such a case may well be taken to commence from or after the date when the Act comes into force provided there has been no partition of that joint family property between the members of the coparcenary previous thereto. This is the view expressed by my Lord in his referring judgment when he stated:
'Such an interpretation does not give the Subsection any retrospective operation when it applies to a case in which the joint family and the joint family property remain undivided and undisposed of till after the commencement of the Act.'
It appears to me with respect that this is a construction wholly unwarranted by the language of the Act and imposes limitations on the accrual of the right not found in the Act itself. It is not enough that the word 'dies' may be capable of being construed as applicable to the case of death prior to the Act. Every other requirement flowing from the wording of the Sub-sections must also be equally applicable to such a case and nothing which is not in it can be imported into it. One cannot shut his eyes to the inescapable implication of the Act that the right accrues by devolution at the moment of husband's death and no other. There is nothing in the Sub-section to warrant the accrual of the widow's right at any point of time other than the moment of the death of her husband, or to make the accrual conditional upon the property remaining undivided between the members of the coparcenary until the commencement of the Act. The Sub-section merely refers to the case of the husband dying as an undivided member of the family and the accrual of the widow's right at the moment of the husband's death. Indeed, if, as my Lord the Chief Justice is inclined to think, the widow is introduced as a sharer by giving her a right to represent the husband just like the son, there is no reason why she should not be able to reopen even a partition already made before the Act just as a posthumous, natural or adopted, son would be entitled to do, the more so after the case in 70 I A 232. This shows the untenability of imposing the condition of no partition (or no disposal) before the Act and of the view that the widow is the representative in the same way that the son is.
27. It is also suggested that there is nothing against such a right, though determined with reference to a point of time prior to the date of the Act, springing up into operation at or after the commencement of the Act. This might have been possible, if the Act purported only to grant to the widow, out of the common pool of the joint family property an interest equal to that of her deceased husband's interest, as indeed was the case in respect of a mother prior to the Act, and did not provide for 'devolution' of that interest. I have already attempted to show that such devolutions occur at the very moment of death. To say that there can be devolution on death but accrual of the right thereafter, would be opposed to the fundamental principle that there can be no accrual on devolution with a gap and that heritage cannot be in abeyance. A devolution 'by succession' and accrual of right thereon must occur at the very moment when the succession opens. The same is also the case with devolution by survivorship as for instance where a member of an undivided Hindu family dies and his interest devolves on the survivors. The analogy of an adopted son divesting the interest of his deceased adoptive father on such adoption even after it has vested in a separated coparcener as in 70 Ind App 232, and the analogy of a reversioner succeeding to a propositus after the death of his widow, which have been suggested in the course of the arguments, have absolutely no relevance in this context and provide no exceptions to the fundamental rule that devolution by inheritance or survivorship cannot remain in abeyance. Nor does the decision of the 'Federal Court in AIR (28) 1941 FC 72, indicate that the devolution on the widow under Schedule (2) is not by heirship (interrupting survivorship), though of course as pointed out therein the word 'devolution' in its generic import is wide enough to include both succession and survivorship.
28. The next point for consideration is whether or not the introduction of the widow as a sharer in the joint family property affects pre-existing rights of the other coparceners. My Lord the Chief Justice, in his referring judgment, has taken the view that the previous death of the widow's husband does not result in vesting any of his rights in the other coparceners and that what the Act does is only to give the widow a right of representation to her husband and that, consequently, there is no question of divesting of vested rights arising, on the construction adopted by him. My learned brother Justice Narasimham has put the matter in a different way and has said that no coparcener has a vested right to a particular share and that he cannot, therefore, complain of any vested right of his being affected by the introduction of an additional sharer in the person of the widow of a deceased coparcener. It appears to me, with great respect, that neither view makes a correct approach to the question at issue. The question is not whether the death of the widow's husband has vested any fresh rights in the other coparceners and if so whether they are taken away by the Act or whether a coparcener has a vested right to a definite arithmetical share. The question is - what are the normal rights of the coparceners 'from their birth' and are they vested rights and if so are they adversely affected by the introduction of the widow as a sharer. If the Legislation, in its general application, affects such vested rights, it can only be construed so as to bring it about either directly or indirectly by retrospective operation and so as not to affect adversely situations resulting from events prior to the Act. It is also pertinent to observe that in order to judge whether the construction of a statute leads to retrospective operation or not, it is not necessary that a pre-existing vested right should be completely divested. It will suffice if the vested right is adversely affected. As pointed out by Justice Mookerjee in 'Promotha Nath v. Soran Dasi', A I R (7) 1920 Cal. 435:
'Every statute which takes away or 'impairs a vested right', under existing laws, or creates a new obligation or imposes any duty, or 'attaches a new disability'.................... in respect of transection or consideration already passed .......... must not be deemed retrospective in its operation.'
See also In re 'Pulborough School Board Election; 'Bourke v. Nutt, (1894); 1 Q. B. 725 at p. 737.
29. The Privy Council has laid down as early as in 'Katama Natchier v. Rajah of Shivagunga', 9 Moo Ind App 539, at p. 611 that:
'According to the principle of Hindu Law, there is coparcenership between the different members of a joint family and survivorship following upon it. There is community of interest and unity of possession between all the members of the family and upon death of any one of them the others take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession.'
In 'Sudarsanam v. Narasimhulu', 25 Mad. 149 at p. 154, Justice Bhashyam Iyengar has further amplified the position as follows:
'The Mitakshara doctrine of joint family property is founded on the existence of an undivided family as a corporate body and the possession of property by such a corporate body. The first requisite, therefore, is a family unit and possession of property is the second requisite. For the present purpose, the female members of the family may be left out of consideration. 'The conception of a Hindu family is a common male ancestor with his lineal descendants in the male line' (the underlining (here into inverted commas) (is mine); and so long as that family is in its normal condition; viz., in an undivided state, it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be the creation of any act of the parties save in so far that by adoption a stranger may be affiliated as a member of that corporate family.'
The conception of a Hindu Mitakshara coparcenary is founded on the text of the Mitakshara, which, by elaborate logic, established that in ancestral property the son has a right by birth and. that his ownership is equal to that of the father. As pointed out by Mayne at page 317, this itself is founded on the right of representation according to which, son, grandson and great grandson take together. It is the essence, therefore, of the ownership of joint family property that every coparcener has co-ownership in and common possession of the entire property and that the interest of each coparcener arises by birth and lapses on death to his male descendants or male collateral coparceners. The property belongs to the joint family and to each male member thereof in common. Anyone acquiring by birth and retaining the status of being its member has certain rights over and from the family property which are not, in any sense, those of mere maintenance holders without any ownership in the property, but are proprietary rights. It is true that the individual rights are, in a sense, overshadowed by the family right of which the manager is the representative while the family is undivided. But the coparcenary is a close corporation consisting entirely of the male descendants of a common ancestor whose membership fluctuates by deaths, births, or adoptions 'and in no other way.' The right which a coparcener has, being a right by birth, it is impossible to say that it is not a vested right. It is Apratibandha Daya according to Mitakshara concept. That interest, though fluctuating, - and in some jurisdictions inalienable, - is itself property. It is on that footing that its attachability and saleability in execution has been laid down by the Privy Council in 'Deendayal Lal v. Jugdeep Narain', 3 Cal 198. Though the interest, at any point of time before partition, is not predictable in terms of an arithmetical share, owing to the very constitution of a coparcenary, that very constitution determines and defines the interest. The interest besides being property before partition is such that it entitles the coparcener to a well-defined share in the family property or the partition according to definite rules based on predetermined facts of which the most important are:
(1) In the distribution the three lineal male descendants have a right of representation.
(2) The distribution is between male members only but per stirpes and not per capita (apart from mother, etc., who get shares in lieu of maintenance.)
(See Mulla's Hindu Law, p. 403, para. 321.)
The interest, therefore, of a coparcener, while it cannot be measured in terms of any arithmetical share before partition, is still one which is definite and definable in terms of the class of membership of the joint family corporation.
30. The above being the nature of a coparcener's interest in the joint family property, the question for consideration is whether the rights of the surviving coparceners can be said 'not' to be adversely affected by introducing the widow of a predeceased coparcener as a sharer in the joint family property. If, as I have attempted to explain above, the interest of a coparcener is, from the moment of his birth, a vested interest carrying with it the right to a share on partition only between the members of a close corporation determined in accordance with prescribed rules of law, it seems to be ununderstandable to say that the coparcener's rights are not adversely affected by the introduction of a sharer not falling within these rules. The case in 'Allen v. Gold Reefs of West Africa, Ltd., (1900) 1 Ch 656 at p. 673, shows that in the case of a company, existing rights founded and dependant on 'alterable' articles can be affected by their alteration, so as to have retrospective operation. This decision, therefore, clearly implies that if the articles on which the rights are founded are not by the constitution of the company alterable, they can only be so altered by retrospective legislation. If, therefore, the rights of a coparcener in a coparcenary depend on the Mitakshara text of the equal right of the son by birth in the ancestral property of the father, such rights are unalterable in the usual way to affect past situations. They can only be affected by an Act with retrospective operation, if the interference with the rights is to be on account of an event prior to the Act. Of course, if the event is subsequent to the Act, vested rights are necessarily affected thereby, because that is the very purpose and intendment of any such prospective legislation.
31. The arguments above noticed to the effect that the death of the widow's husband does not result in vesting his interest in the other coparceners or the introduction of widow as a sharer on her husband's death does not adversely affect any vested interest of coparceners, lay too much stress on the unpredictable nature of a coparcener's arithmetical share on partition. But that is not the sole criterion of a coparcener's interest. His is a vested interest. It is no doubt fluctuating in one sense. But the fluctuation is not erratic. It is determined by well-defined rules which flow from the very concept of a Mitakshara coparcenary and constitute the essential criteria of a coparcenary interest. It seems to me therefore, with great respect, well nigh impossible to say that the introduction of the widow as a co-sharer does not adversely affect the coparcener's vested interest. There may have been some plausible argument if the widow was not introduced not as a mere co-sharer but as a coparcener. Then at least in some contingencies, i.e., on death of widow each coparcener may get the benefit of an augmented share. But as already pointed out her death cannot 'prima facie' benefit the other sharers. Hence her introduction as co-sharer must in every case have the inevitable result of reducing the share which. each coparcener would otherwise have had.
32. It has been suggested that the widow of a coparcener is a member of the joint family and is, in any case, entitled to maintenance and that the right of the coparceners to admit only the male descendants of a common ancestor to a share in the property at the time of the partition amounts to no more than a privilege to exclude the female members from any share in the property and that therefore admitting such female members to a share in the family property cannot be said to have an adverse effect on the rights of the coparceners as such and the case in (1898), A. C. 240, has been relied on. My Lord has also said that one coparcener obtaining a benefit by survivorship on the death of another is a privilege. I confess with respect my inability to appreciate these views. The distinction between the alleged right in (1896) A. C, 240, and that in the present case is obvious from the facts in the former. As pointed out already it is of the essence of a coparcenary, as a corporation owning joint family property, that it is confined to the male descendants of a common ancestor and that it lapses on his death. The female members do not come into the picture at all according to that concept excepting for purposes of maintenance. The only exceptions are the mother, grandmother and the like and the unmarried daughter, who get on partition certain specified shares, but it is settled that they get these snares in lieu of maintenance and not by virtue of any pre-existing right in the property. See AIR (23) 1938 P C 20. Kven this right of sharing has itself become obsolete in certain jurisdictions such as in Madras. It is to be noticed in this connection that the effect of the Act is not merely to introduce the widowed mother as a sharer but the widows of all other predeceased coparceners, both ascendant and descendant, as co-sharers. This is entirely beyond anything that even the ancient Hindu Law contemplated.
33. Further, it should be noticed that it is not merely the quantum of the share on a future partition that is adversely affected by the introduction of the widows of predeceased coparceners, but that the interests of the coparceners are affected by the Act in various other ways also. In the first place, the share allotted to the coparcener's widow under the Act is 'prima facie' taken altogether out of the joint property, as such, and does not revert back to the family on her death, unlike for instance, as in the case of a share allotted to a mother under the pre-existing law - See 'Debi Mangal Prosad v. Mahadeo Prasad', 34 All. 234. This follows from the provision that the widow takes her interest as a Hindu Woman's estate which, appear to mean, that on her death, it goes to the heirs of the separate property of her husband. There is no direct decision on this specific point, but it may be noticed that the same view has been expressed by Justice Viswanath Sastri of Madras High Court in A I R (37) 1950 Mad. 538, at p. 540. Secondly, under the preexisting law relating to the allotment of a share to the mother, the mother was not entitled to demand partition, but could only gel; a share on partition - See AIR (23) 1936 P C 20. Under the Act, however, the widow is given the right to demand partition by virtue of the interest that she gets. It is clear therefore that she is entitled to compel partition even though all the other coparceners are united in not requiring a partition. Then, again, before partition, the coparceners can, as between themselves jointly, alienate any specific item of joint family property but on the introduction of the widow as a co-sharer they cannot do so unless she also consents to the same. Further, while, according to the law prevailing in jurisdictions other than Madras and Bombay, no coparcener can alienate his interest by private sale for consideration, the widow who gets the deceased coparcener's interest under the Act can alienate her interest without reference to the others introducing thereby complications in the management of the joint family property against the will of the other coparceners. These and other ways in which the interest of the coparceners as a group, and of individual coparceners as comprising that group, are adversely affected, in the sense that new disabilities or fetters are attached to the joint holding of the property by coparceners as a group can be multiplied. It seems to me, therefore, that it is not merely the quantum of the coparceners' share that is affected adversely but also their rights in several other respects; and it is not permissible to whittle down the effect on the coparcenary of the introduction of the widow as a co-sharer of the joint family property by assuming the coparcener's share to be an inchoate and indistinct privilege, and the other rights as having relation to sentimental objections to the deprivation of privileges.
34. Let us now consider what would be the position, if, after the death of the widow's husband and before the Act, there have been partitions. In the normal case of the post-Act widow she can undoubtedly reopen partitions made behind her back after her husband's death. But it has been suggested that a pre-Act widow cannot so reopen prior partitions because the Act is not retrospective. That, to my mind, is begging the question. To say that the pre-Act widow gets an interest, only to the extent that there has been no previous partition or previous alienation of the family property and cannot therefore reopen them is, as already pointed out, to introduce limitations on the right which are not to be found in the Act itself. Let us also consider the case of an alienation of an individual coparcener's interest, after the husband's death and prior to the Act, the alienation being either of the coparcener's interest in the entire family property or in a specific item thereof. Such alienation can be inter vivos in Madras and Bombay and in invitum elsewhere but the considerations are the same. Suppose the alienee has worked out his interest, before the Act, by a partition, but the coparceners remain joint; the coparceners are put to a double loss, once by the alienation which must have been worked out on the footing that the widow's husband does not count and later by introduction of the widow as a co-sharer treating her husband as continuing for the purpose. Take again the case where the alienee did not happen to work out his rights until the Act. How are the widow's rights to be adjusted? Consonantly to the assumption that the widow gets her husband's interest, if the property remains without partition till the Act it must be taken that the alienee will have to get the share as affected by the emergence of the widow as a ootsharer. This is definitely affecting adversely the vested interest of such an alienee - at least as understood in Madras - See 'Chinnu Pillai v. Kalimuthu', 35 Mad. 47, which I pointed in my earlier judgment. I think the same is the position of execution sale purchasers in other jurisdictions. Again take a case, where the widow herself has entered into some arrangements with her coparceners for her life in lieu of maintenance, before the Act. Does the Act entitle her to repudiate and reopen the arrangement? To these and other complications that must arise in respect of arrangements prior to the Act as a result of the view sought to be urged in favour of the pre-Act widow, I could find no answer in the course of the arguments except the evasive one that those cases do not, arise for decision in the present case and may have to be dealt with when they arise and that each such case must be decided on its own facts virtually implying that, the Court must arrogate to itself 'ad hoc' legislative function for each case. But in my view a tentative and 'prima facie' consideration of these complications is necessary for arriving at a proper conclusion in this case and without going into further elaboration it is enough to say that I am inclined to think that the view urged will have the effect of adversely affecting rights vested by previous transactions.
35. I am, therefore, quite clear in my mind that the introduction of a widow of a deceased coparcener as a sharer in the joint family property has the definite result of adversely affecting in. general the interests of the coparcenary as a whole,, as well as of the individual coparceners in the property and of strangers in certain events and that the Act cannot be construed as comprising within its scope the view of a coparcener who died, before the commencement of the Act, unless it can be definitely held to be retrospective in the operation which it is admitted it is not. It appears to me therefore with the greatest respect to my learned colleagues that from the unequivocal wording of sub-section (2) and (3) of Section 3 indicating that the widow's right accrues, by devolution at the very moment of her husband's death and from the nature of a coparcener's interest as being a vested right by birth defined and determinable according to the prescribed rules of Mitakshara system which must be affected by the introduction of a widow as a co-sharer, the result inescapably follows that the Act cannot apply to the case of a widow whose husband died prior to the Act.
36. This without more should be enough for supporting my conclusion. But out of respect, for other arguments advanced, I shall proceed to. notice the same.
37. In the course of the argument, the case in 'Queen v. St. Mary's Whitechapel, (1848) 116 E R. 311 and in 'The Queen v. Birwistle', (1889) 58 L J M C 158 (See also 'Jogadanund Singh v. Amritalal', 22 Cal 767 at pp. 779-780) has been relied on in support of the position that a statute is not retrospective merely because a part of the requisites of its action is drawn from a time antecedent to its passing. I am not at all sure that the principle of such cases is not confined to what may be called mere remedial rights and whether they can be extended to statutes relating to substantive property rights. On a careful perusal of these decisions, however, it will be seen that they have no application to the situation of this case. It is necessary to notice that, on the facts of the case in (1848) 116 E R 811, it was pointed out in the report itself, that the statute in its direct operation was prospective since it relates only to future removals and that only 'a part' of the requisites for such action is drawn from a time antecedent to the passing of the Act. In that case the requisites for the operation of the power of removal under the statute consisted of two facts (1) widowhood as indicated therein and (2) continuance of widowhood for 12 months thereafter. The right of removal of pauper widows from the parish by the authorities can, in no sense, be considered a vested right at any rate, it is not a vested property right. It is also necessary to emphasise that the significance of the word 'part' in the relevant passage in that report cannot be missed or blurred over. The reason is that, in such cases, the totality of the requisites becomes complete only after the Act, and hence the right itself accrues after the Act. Similarly in (1889) 58 L.J., M.C., 158, the accrual of the right conferred depended on desertion plus continuance thereof until after the Act. In the case 22 Cal. 767, also it will appear from the facts that the principle in (1848) 116 E R 811, was applied since only a part of the requisites for the operation of the statute was prior to the Act, viz., the passing of the decree in the case - See pp. 779-730. In the case before us the 'only' requisite for the 'accrual of the right under the Act is the single, fact of the death of the husband owning an interest in joint family property. Therefore, if the Act is to be applied to the case of the widow of a husband who died before the Act, both the requisites for the operation, and the operation itself, are antecedent to the Act, and .hence retrospective and there is no scope for a prospective operation on such facts. There may have been some possible room for argument - based on the principle of the above cited case - only if it could be deduced from the language of the Act that the accrual of the right - though partly dependent on the death of the husband - is, in some way at least, directly connected with and dependent on the factum of a partition taking place subsequent to the passing of the Act. But, as I have already stated before, there is no room for any such construction, and no such construction has been attempted to be argued. I may add that in this connection the cases under Hindu Law of Inheritance Amendment Act (II (2) of 1929) have been pressed into service in which I can find no analogy.
38. Another rule of construction has been pressed into service, based on a passage in Halsbury, Second Edition, Vol. 31, page 572, namely, that a statute is to be regarded as 'always speaking.' But this, I apprehend, does not mean that the statute is to be construed as operative with reference to the past as much as with reference to the present and the future: it only means that, with reference to any particular case that falls within the scope of the wording of the statute, the statute must be taken to be speaking with reference thereto - and it is not to be regarded as a rule of guidance as to the retrospective or prospective operation of the statute. It seems to mean what Lord Esher has pointed out in (1894) 1 Q B 725 at p. 735, viz.:
'That when the present tense is used, the time to be considered is the time at which the Court has to act.'
On the other hand, the principle applicable to such cases has been clearly laid down by Lord Justice Lopes in the same case at p. 737 as follows:
'It is a well-recognised principle in the construction of statutes that they operate only on cases and facts which come into existence after the statutes are passed unless a retrospective effect is clearly intended. This principle of construction is specially applicable when the enactment to which retrospective effect is sought to be given would prejudicially affected vested rights.'
This very principle has been referred to by Justice Varadacharlar in A I R (32) 1945 FC 25 at p. 33, in the following terms:
'The Act is 'prima facie' prospective and its proper construction and operation must be determined with reference to conditions and contingencies likely to arise, after its commencement, because these alone could presumably have been within its contemplation.'
The same principle of construction has also been adopted in a Pull Bench case of the Patna High Court relating to the Inheritance Amendment Act 1929 - See 'Bhagwat Narain v. Srinavas', AIR 124) 1937 Pat. 113, at p. 121, and also by Chief Justice Sir Courtney Terrell in 'Punyabrata Das v. Monmohan Ray', AIR (21) 1934 Pat. 427 at p. 430, when he construed the words 'who marries' occurring in the Special Marriages (Amendment) Act XXX (30) of 1923 as synonymous with 'who shall marry hereafter.'
39. I shall now turn to the sections of the Act other than Section 3 and the implications thereof. In my judgment) in the Division Bench I came to the conclusion - on a consideration also at Sections 2, 4 and 5 of the Act, 1937, as amended by the Act of 1938 - and having regard to the history of the amendment - that the Legislature had clearly intended that the Act ought not to be applied to the case of a widow of a coparcener who died prior to the passing of the Act. My Lord the Chief Justice and my learned brother Justice Narasimham have however - on a consideration of these very sections - come to a different conclusion. I do not propose to go into the matter any further except to make the following observations,. My learned brothers point out that, in the view I take of Sections 2, 4 and 5, the use of the phrase 'dying intestate' appearing in Section 2, as applied to the case of a coparcener in respect of his joint family interest, will not be in consonance with accepted legal notions of testacy and intestacy and is - to say the least - bad English if not also bad law. They further point out that the word 'intestate' occurring in Sub-section (2) of Section 3 of the Act, as it stood in 1837, was omitted in the Amendment of 1938 and that having regard to that circumstance Section 4 would be absolutely redundant if it was not meant to imply and convey that Section 3 (2) is to apply to a death prior to the Act. While I do not deny the force of this criticism, I would with respect point out that, if the contrary view is taken of Sections. 2, 4 and 5 as my learned brothers have done, one is obliged to say - as indeed Justice Narasimham, has done - that Section 2 is redundant and the word 'intestate' therein should in any case be deleted. As between the two views of the construction of Sections 2, 4 and 5, viz., that which, renders Section 4 redundant and that which renders Section 2 otiose, I would, with respect, submit, that the former is definitely preferable, having regard to the history of the Act which shows that originally Section 4 must have applied to both. Sections 3 (1) and 3 (2). I may also add that the redundancy of Section 2 is not so obvious to me as it appears to my learned brother Justice Narasimham. In the absence of Section 2, it may be - as pointed out by him though I am not, sure about it, that Section 3 might prevail even as against a relevant rule of Hindu Law or custom to the contrary; but it would prevail only as against such a rule relating, to inheritance or devolution, i.e., a rule designating the person who is to take the property of the deceased person as his successor and as against nothing else. It appears to me, however, that Section 2 is intended to provide for - and in fact has - a much larger content than that; it seems to me to be intended to provide, for instance, that the devolution is to take effect notwithstanding, that such devolution may bring about certain anomalies in the application of the law relating to coparceneries or interfere with vested rights of coparceners and notwithstanding that it results in the curious position of a coparcener and a non-coparcener sharing together joint family property a position hitherto unknown. This I have mentioned only to show one of the many possible contingencies to which Section 2 might apply which may require to be specifically provided for statutorily. It may also be pointed out that the section has in fact also been construed to bring about the result that a widow would obtain her rights under the Act, irrespective of the disqualifications imposed under the normal law consequent on the unchastity of the widow at the time when succession opens - See 'Akoba Laxman v. Sai Genu Laxman', AIR (28) 1941 Bom 204. In the absence of Section 2, as already stated, the rules in Section 3 might prevail as against other competing rules governing devolution of the property in question, but they cannot prevail over the rules which may affect but do not directly relate to devolution or succession such as the rules governing disqualifications on such devolution. I am, therefore, not prepared to agree with a view which involves such an important section as Section 2 being rendered otiose and which in any case requires the deletion of the word 'intestate' therefrom.
40. In the view that I have taken of Sections 2, 4 and 5 there is no doubt some inappropriateness in referring to a coparcener - who dies leaving only an interest in joint family property, as a person 'dying intestate.' But having regard to the specific definition of the phrase 'dying intestate' in Section 5, it appears to me that there is nothing so very incongruous in relying on the literal meaning and in referring to a person - who may not make a will in respect of property over which he has no testamentary capacity - as a person 'dying intestate' in respect of that particular property, for the simple reason that even if such a will is made it cannot take effect.
41. Nor am I impressed by the argument that the use of the word 'property' in Section 5 renders it inapplicable to an 'interest' because, in terms, the Act itself, as its preamble shows, gives better rights to women in respect not only of property but also interest, - See Sub-section (2) of Section 3.
42. If the matter rested merely on the view that is to be taken of the construction of Sections 2, 4 and 5, I might have hesitated, in view of the admittedly bad drafting of the Act, to differ from the view taken thereof by my learned brothers. But it appears to me that quite irrespective of the construction to be put on these sections the plain meaning of Sub-sections (2) and (3) of Section 3 of the Act is clear and decisive against the construction that has appealed to them. To say the least there is nothing in these sections to override the plain meaning of Sub-sections (2) and (3) of Section 3, except the supposed negative implication of Section 4 which is found to be unwarranted if one has regard to the unamended Act in 1937 and the history of 1938 amendment.
43. It has been strenuously pressed on us that the Act is a remedial measure and must be construed benevolently and that the test to 'be applied in construing a remedial Act is not merely whether a particular construction thereof is the normal meaning of the language used, but that the question is whether the language is sufficiently wide to admit of a construction which brings in all members of the class who are intended to be benefited by it. While I have no quarrel with this proposition, I must point out that even in the case of a remedial statute it is the language of the statute that must govern and there is no warrant for any construction which cannot reasonably be deduced from a fair construction of the Act. The Act is merely one 'to give better rights to women' as the preamble shows. But it is not clear what particular class of women are intended to be benefited thereby. It cannot even be maintained that at least all widows are intended to be benefited, thereby. Indeed the contrary can be demonstrated, viz., that certain women who were entitled to rights under the pre-existing law are deprived of their rights. For instance, the mother or daughter of a widower (male) having self acquired property who leaves him surviving no male issue but a widowed daughter-in-law is excluded by the said daughter-in-law by virtue of Section 3, Sub-section (1). Therefore the Act helps only some women who are widows and not all women or all widows. It may, therefore, well (sic) that the Act intended to help only future widows of joint families and was anxious not to disturb the domestic equilibrium of joint families, into which or outside which, widows must have settled themselves under the pre-existing law. It may also well be that the Legislature was more anxious about the fate of future widows of joint families who are an ever-present class in the present conditions of Hindu society rather than about past widows of such families whose number, in any case, must be definite and gradually dwindling and who must disappear altogether by mere lapse of time.
44. In my previous judgment, I have relied on the judgment of the Federal Court In A I R (32) 1945 F C 25, as amounting to an implied decision that Sub-section (2) of Section 3 does not apply to the case of the widow of a coparcener who died before the Act. My Lord the Chief Justice is inclined to think that in that particular case the widow was not given a share in the interest of the husband whodied prior to the Act, not because the Act was not applicable to such a case, but because the death of the widow's husband left the entire family property in the hands of the sole surviving coparcener and the question of the widow's interest arose only on the death of that coparcener after the commencement of the Act. With great respect, I am unable to see how that makes any difference. My Lord has observed as follows in his previous judgment:
'On the facts of that case, the joint family property had become vested in one owner before the Act commenced. It having become the absolute and exclusive property of Arunachala, the last male-holder, to hold her as entitled to inherit would amount to reopening a transaction or consideration already vested.'
With great respect, this view of the nature of the interest that Arunachala took ignores the very decision of the Federal Court which, in terms,' decided that what Arunachala held as the sole surviving coparcener was not his absolute property but was an interest in joint family property liable to be effected by posthumous adoption to a deceased collateral and that, therefore, Sub-section (1) of Section 3 was not applicable. In the view of the Federal Court
'the difference between the position of a person owning self-acquired property and that a person who happens to be the holder of property as the sole surviving coparcener for the time being, is shown by the fact that in the latter case his right as full owner will be reduced to that of a coparcener the moment adoption is made by a predeceased coparcener's widow' - See AIR (32) 1945 F C 25, at p. 33.'
In the words of the Judicial Committee in 70 Ind App 232
'this possibly challenges the character of a surviving coparcener's right as an absolute right' and creates qualifications which impair its completeness.'
If, as my Lord is prepared to think, the result of the Act is to clothe the widow with the right of representation to the interest of her husband, there is absolutely no reason why even the sole surviving coparcener's interest in the joint family property cannot be divested in her favour in the same way as it could have been in. favour of a son adopted by her. It appears to me that the fact of the matter is that the widow does not represent the husband except in a very loose sense and that the property is not so absolutely vested in the sole surviving coparcener as to furnish the reason for the assumed decision of the Federal Court that the widow in that case was not entitled to succeed to her husband's interest in the joint family property. I must, therefore, respectfully disagree with the view that the decision in A I R (32) 1945 P C 25, is not a decision on the very question at issue in the case now before us. In my view the earlier passage in the report, viz.,
'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 the passing of the Act.
appears to me to be the expression of the unequivocal opinion of the Federal Court and I can see nothing in the use of the word 'prima facie', in the later passage, viz.,
'the possibility of such varying consequences cannot be allowed to control the natural and reasonable interpretation of the Act; it is 'prima facie' prospective etc.'
as militating against the view expressed in the earlier passage which is a definite and decisive opinion on the point. The use of the word 'prima facie' indicates only that no reason for a contrary interpretation appeared from the Act; and it is only a Judge's cautious way of stating his conclusion on a matter which was taken for granted without argument. The fact that the widow was not given a share in her pre-deceased husband's interest in the joint family in that case is indisputable and the reason for it has been stated by the Federal Court itself in the first passage quoted above. There can, therefore, be no reasonable doubt that there was a clear, though assumed, decision that the Act was inapplicable to her case and 'that it was given effect to in refusing her a share. All that can be said is that the point of law itself was not specifically raised before the Federal Court and debated. But that must be so because the eminent counsel who appeared for the widow in that case felt the position to be unarguable. I would, therefore, with respect, follow the above implied decision of the Federal Court as I understand it - on the very question as in this case. I can find no reason to think that any of the arguments now relied upon for the contrary view would have escaped notice if found tenable.
45. To sum up, my view is, that the meaning of the relevant provisions of the Act is clear and does not admit of the suggested benevolent construction. Sub-sections (2) and (3) of Schedule , show that the widow's interest accrues by devolution at the moment of husband's death and such devolution adversely affects the rights of each coparcener vested in him from the moment of his birth, defined and determined with reference to fixed Hindu Law Rules and may also have the effect of adversely affecting past transactions. The machinery in the Act provided for benefiting Mitakshara joint family widows is not by a mere declaration vesting in all such widows the interest of their deceased husband from and after the passing of the Act and therefore in effect, providing for a grant of that interest to them, taking it out of the common pool of the joint family property, but it is by way of devolution of that interest from the husband to the widow. The widow while introduced as a sharer of the family property, is not made a statutory grantee, but a statutory heir, of the coparcenary interest therein of her husband. It is, therefore, impossible to extend the benefit of the Act to a pre-Act widow except by giving the Act retrospective operation. The principle of prospective operation of rights founded partly on past events is inapplicable to the present case in view of the nature of the interest created in favour of the widow by the Act. Such authority as there is in A I R (32) 1945 F C 25, is in support of the conclusion that the Act does not apply to pre-Act widows to give them a right in joint family property.
46. I cannot help pointing out that the law has been understood in the sense in which I understand it since the date of its passing in 1937. (See also 'Ram Bilas Singh v. Loke Nath', AIR (36) 1949 , Pat 405 at p. 408), and that the opposite view will have the consequence of reopening at least the transactions and partitions between 1937 and 1951, of families who have pre-Act widows, if not transactions prior to the Act, except probably to the limited extent of transactions relating to agricultural lands between 1937 and 1944, vide Schedule of Orissa Act V of 1944. It will have the unfortunate effect of disturbing the domestic equilibrium of such families and will lead to disastrous and speculative litigation. These considerations can of course have no bearing if the statutory provisions are clear in favour of such widows. But the contrary is the position in this case so far as I can see, and what all is said for the other view, is not that the language is compelling, but is wide enough. I can only close with a passage from Lord Brougham delivering the judgment of the Judicial Committee in 'Crawford v. Spooner', 4 Moo Ind App 179, as follows:
'The construction of the Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Statute; we cannot add, and mend, and, by construction, make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly; much more, if the Legislature intended something very different; if the Legislature intended something pretty nearly the opposite of what is said, it is not for Judges to invent something which they do not meet with in the words of the text (aiding their construction of the text always, of course, by the context); it is not for them so to supply a meaning, for, in reality, it would be supplying it: the true way in these cases is, to take the words as the Legislature has given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered; and therefore, if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning, and supply the defect in the previous Act.'
47. I have had the opportunity of reading the judgments prepared by my learned brothers Das and Narasimham, JJ., I am in entire agreement with Narasimham, J., and for the reasons expounded by him. I would hold along with him that there is nothing in the language of the Act which compels one to hold that women widowed prior to the Act are not intended to be benefited by its provisions. The Act is intituled as an Act to amend the Hindu Law governing Hindu Women's Right to Property. The scope and object, except what appear from the preamble, are sought to be succinctly epitomised in Section 2 of the Act. It reads:
'Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of Section 3 (the only operative section) shall apply where a Hindu dies intestate.'
In its operation, the section is not intended to repeal the Hindu Law but to amend it to an extent specified in the following section of the Act. The changes thus introduced, either in the rules of inheritance or survivorship are to be understood in the context of Hindu Law of Succession, in general, and the system of coparcenary, in particular, interfering with the pre-existing system as little as cannot be avoided. In the case of 'Secretary of State v. Bank of India, Ltd.', 65 Ind App 286(sic)
'A statute Is 'prima facie' to be construed as changing the law to no greater extent than its words or necessary intendment require.'
The learned author (S. Srinivas Iyengar) of Mayne's treatise on Hindu Law and Usage, 10th Edn., observes at p. 716:
'Where the provisions of the Act are clear, effect of course must be given to them. But the legislature may well be presumed to have left Hindu law unaltered in other respects.'
Pre-eminently therefore, the words, phrases and their connotations should be interpreted and evolved in conformity with the notions and concepts of Hindu Law. There are many instances occurring in the Hindu Law which, tested in the light of general juristic principles that prevail in the jurisprudence of most of the civilised countries and which constitute the basic spring-board for the various legislations undertaken by the British Government up-to-date, may appear anomalous; but to one conversant with the particular features of social and socio-economical framework of the . society of Hindus, their concepts of family properties of various kinds, their modes of holding, devolution, disposal, suspension, re-animation and various other kinds of incidents and rights, privileges, obligation and liabilities incidental thereto, those instances will appear nothing but naturally and justly, though not logically, flowing from such principles of justice as are inextricably inherent in such conditions and features of the social framework of the Hindu society. We, therefore, in interpreting the statute, should not run away from such peculiarities or peculiar concepts inseparable from Hindu Law. Reference may be made to a few such instances. Take the case of an impartible estate. The holder thereof is designated by survivorship and the estate, whenever any occasion for it arises, devolves by rule of survivorship; but almost all the normal rights and privileges of a coparcener remain in suspension all the while, the single holder is alive 'Baijnath Prashed Singh v. Tej Bali Singh', 48 Ind App 195. Though it appears unjust and, at the same time, illogical in view of its being coparcenary property in which all the coparceners ought to have equal interest, the solitary holder has not only the exclusive dominion but also the full power of disposal except in Madras Presidency (State of Madras) where the Hindu Law has been, in this respect, amended by the statutory law of the Impartible Estates Act. No coparcener of such a family has a right of claiming partition. This is against all logical canons of inductions and deductions applicable to the coparcenary system. Still, the system has been obtaining and working from time immemorial till the modern individualistic age of equality of men and their rights and status. Take the instance of a' widow of a coparcener. She has a charge for maintenance against the coparcenary property to the extents of her deceased husband's interest therein though her husband left no such interest behind him. His interest on his death simply became extinct or lapsed. No other coparcener, who survived him, can be said to have derived any interest from him. The said interest is neither identifiable nor definable so as to be proceeded against by his creditors except under an attachment effected while he was alive. This position does not conform to strict logic. Compare, the position of a widow, as a dependant and mere maintenance-holder, is abruptly converted by a process of renovation, as it were, from a sort of suspended animation to that of a sharer when the sons and grandsons, etc., of her late husband effect a partition of the coparcenary estate in which her husband had an interest at the time of his death. Is this justifiable by appli (sic) been so, the widow would be entitled to the same right of a share at the partition of the coparcenary properties between the collaterals of her husband who left no issue of his own amongst his survivors - coparceners. This was, in fact, an anomaly of Hindu Law, and it is now removed by the Act. The result is that while a partition of the joint family property shall take place as between the coparceners, be they her husband's lineal descendants or collaterals, she shall be entitled to a share representing chat of her husband. This remedies the standing deficiency in Hindu Law. If you hold that the right to maintenance is such an interest in the joint family property that its normal mode of enforcement or realisation is a share at the partition of the property, then the Act does not introduce any change in the law. But it cannot be so held. Right to maintenance is an interest in the family property but is not equivalent to a right to a share. It was just by way of compromise that she was given a share at a partition between her husband's sons, that is, her sons and step-sons and their sons, etc. Search for the logic as to why the same right was not acceded to her as against her husband's collaterals and why she was not given the right to claim partition on her own initiative and you do not find any except that the society's economy stood in need of co-operation and conjoint labour of the members of the family ,and occasioned the setting up of the corporate body of a coparcenary. The body was the personal unit and the properties owned by it were the estate units. The unit character was rigorously maintained under the managership of one head - an autocrat. No female was endowed with the power to disrupt it so long as the males did not desire to do. Minor males also were allowed no right to call for a partition except on special circumstances affecting them prejudicially in relation to their interests. The distinction between the existence of a widow's right to share against her husband's descendants and its negation as against the collaterals, in similar circumstances, is understandable on the hypothesis of the theory that till now obtains that a collateral does not represent another deceased collateral as he derives no interest from him on his demise. He on partition represents his ancestor, however high, who had once an interest in the coparcenary. The strict logical deduction resulted in an unequal treatment to a widow whose husband had left no issue. Here is an instance, where logic would work out an injustice. This is now removed by introducing an exception to this logical deduction by way of compromise. Now under the Act, the widow is given a share, on partition, of the property in which her husband had an interest as a coparcener. This is to be worked out in keeping with the family unit, both in relation to person and property. Naturally, if there is any apparent anomaly, viewed as a compromise, it is not so in reality. After a right to share is conceded, it, is but natural that the remedy for the enforcement of such right shall be provided as in Sub-section (3) of Section 3 of the Act. A disqualified heir has no right to succession; but in a joint family if a son is born to him, he becomes a coparcener. An invalidly adopted son acquires a right to maintenance in the adopter's family. Hindu Law is the cumulative result of checks and balances and various compromises. Any patch repair by piecemeal statutory amendments is bound to give rise to various doubts and difficulties. But this repair work is not intended to alter the character of the structure but to maintain it notwithstanding. The interpretation of the Act shall be approached in that background.
48. With regard to the language of the statute, under review. I do not intend to speak more than what I have already said in my judgment in the Division Bench, rather the referring judgment, and what has been said by my learned brother Narasimham, J. The key sections of the Act, for the present purpose, are Sections 2 and 4. Section 2 defines the ambit of operation of Section 3, and Section 4 prescribes the exception, or is inserted by way of a proviso to it. If we concede to the view taken by Das, J., both the sections should appear to be conterminous and co-extensive. It would mean as if the Legislature was needlessly redundant in defining the same rule twice over. Section 2 defines that the Act shall apply to the properties of a Hindu dying intestate. Section 4 says that the Act shall not apply to the property of Hindu dying intestate before the commencement of the Act. According to brother Das, J., an equivalent reading of Section 2 should as well be
'Notwithstanding any. rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate 'after the commencement of the Act.'
The Legislature shall then be deemed to have said that same thing both affirmatively and negatively. Nothing could have simpler for the Legislature than to enact Section 2 as
'Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of Section 3 shall apply where Hindu dies intestate after the commencement of the Act.'
This would completely obviate the necessity of enacting Section 4 at all.
The only explanation why Section 4 was there notwithstanding Section 2, is that Section 2 makes the Act applicable to cases of deaths of Hindus occurring either before or after the Act and Section 4 emphasises the same by excepting, from the general rule of applicability prescribed in Section 2, the cases specified therein, namely, the cases where a Hindu leaves separate exclusive properties of his own which he could have disposed of by valid testamentary disposition, but had failed to do so, and which would descend on his death to his heirs as distinguished from survivors, by rules of inheritance, the Act having introduced some new heirs into the pre-existing list of heirs under Hindu Law, as it then stood.
49. Furthermore, a distinction between the property of a deceased Hindu, and the interest that lie had at the time of his death in a Hindu joint family property has been laboriously maintained in the Act, wherever it is relevant to the purpose, particularly in Sub-sections (1) and (2) of Section 3. True, that the word 'interest' is of greater comprehension than 'property.' In some circumstances, notion of property may be expressed toy the word 'interest.' The altered rule of succession provided for in Sub-section (1) deals with a .deceased intestate Hindu's property. Here 'property' is interest in movables and immovables, corporeal or incorporeal rights and here ditaments in such properties over which he has, 'at all material times, during his life', the complete power of disposition while 'the interest' dealt with in Subjection (2) conveys quite a different conception of property. For the sake of perspicuity and clear visualisation of the differences as to the incidence of the newly introduced rule into the Hindu Law of succession, the Legislature has been particularly careful to maintain the two different phraseologies. In Sub-section (3), the word 'interest' has been used in the more comprehensive sense of including both what is 'interest' within the meaning of Sub-section (2) and what is 'property' within the meaning of Sub-section (1) of the section. A peep into the significance of the word 'interest' in the eyes of a great lawyer like Sir George Rankin may throw some light on the discussion. His Lordship in the case of 'Kalyanji Vithaldas v. Commissioner of Income-tax, Bengal'. 64 Ind App 28 at p. 37, observed:
'Does then the existence of a wife, or of a wife and daughter, make it income of a Hindu undivided family rather than income of the individual partner? Their Lordships think not. A man's wife and daughter are entitled to be maintained by him out of his separate property as well as out of property in which he has a coparcenary interest, but the mere existence of a wife or daughter does not make ancestral property joint. 'Interest' is a word of wide and vague significance and no doubt it might be used of a wife's or daughter's right to be maintained, which right accrues in the daughter's case on birth; but if the father's obligations are increased, his ownership is not divested, dived or impaired by marriage or the birth of a daughter. This is equally true of ancestral property belonging to himself alone as of selfacquired property.'
No interest of a coparcener in coparcenary property can be said to be such of his property as he can leave behind him to be inherited or otherwise disposed of, except on partition after dissolution of the corporation of a coparcenary and division of the unit of its estate. Until separation in estate, no fragment of it can be called property of an individual in the fullest sense of the term.
50. Coming to Section 4, we find that the Legislature confined its operation to the property of any Hindu dying intestate. Mark the singularity of the sameness of language in this section with that in Sub-section (1) of Section 3. That Subsection deals with intestate deceased Hindu's property governed by Dayabhag School and the separate property left by him, on his death, in any other School of Hindu Law or customary law. One cannot shut his eyes to this remarkable identity of expression. It cannot be without a significance and meaning. While dealing with an interest in Sub-section (2), the Legislature gave preference to the words 'having at the time of death' rather than 'leaving' used in Sub-section (1). This is because, the Mitakshara coparcener dying leaves nothing behind. Thus, for the purpose of succession or inheritance and various other purposes cognate thereto, and in relation to his testamentary or non-testamentary disposition, no Hindu coparcener can predicate of himself of having such property in the coparcenary estate as he could leave on his death. No doubt, he cannot be said to be propertyless when he is a member of the coparcenary owning coparcenary properties. This conceptual difference between property of a Hindu and his interest in the joint family property having been laboriously maintained by the Legislature in phrasing the Act, all the implications of the Act inconsistent with or repugnant to the said distinction, which is fundamental and basic, must have to be ruled out. In this context, the contention that, for the purpose of attachment and sale by a creditor, a Hindu coparcener has property seems to me to be wholly beside the point. In this background, the language of Section 4 negatives any assumption that 'the interest of a Hindu', irrespective of his being testate or intestate or otherwise, in the coparcenary property is included within the words 'the,property of any Hindu dying intestate before the commencement of this Act.' Therefore, it is clear that Section 4 is an exception to Section 2 and, in that sense, does not limit the operation of Sub-section (2) of Section 3 to cases of women widowed subsequent to the Act. The word 'intestate' in Section 2 is no doubt 'extra' as pointed out by the learned author of the 10th Edition of Mayne's Hindu Law. I would quote a passage from the learned author's exposition at p. 716.
'As the Act stands, on a strict construction, Subsection (2) to Section 3 can apply only when under Section 2 a Hindu dies intestate, especially as those words are not required in connection with Section 3 (1), being already there. If, therefore, he has made a complete and valid disposition of all his separate and self-acquired property, he cannot be said to have died intestate. But as intestacy cannot by any legal possibility be a condition of operation of Sub-section (2) to Section 3, the words 'dies intestate' in Section 2 must be treated as surplusage having no sensible meaning, to-avoid an absurd result.'
As this aspect has been sufficiently dealt with by brother Narasimham, J., I do not think it is worthwhile to dilate upon it any more. That the words 'dying; or dies', wherever they occur in the Act, do not necessarily convey an idea of futurity is not seriously disputed. Similar words did occur in the Hindu Law of Inheritance Amendment Act (II of 1929.) They received the judicial interpretation including the notions of deaths both before and after the Act. The expression of a contrary view was not favoured by almost all the High Courts and finally the Judicial Committee. I would refer to a passage from 'Pokhan Dusadh v. Mt. Manoa', A IR (24) 1937 Pat. 117, at p. 120.
'The first objection admits of a simple answer. It implies that the words 'Hindu male dying intestate' mean a Hindu male who will hereafter die intestate. It appears to me, however, that the words in question were never intended to convey this meaning. The words 'dying intestate' which qualify the preceding words 'Hindu male' are merely descriptive and limit the operation of the Act to the estate of those Hindu males only who answer the description. It is true that the participle in the expression 'dying intestate' is in the present tense; but that is the present tense of logic and the expression connotes the intestacy of the deceased owner without any reference to whether the death occurs before or after the Act comes into force. 'The Hindu male dying inestate' simply means the Hindu male who has died or may die intestate.'
That legislation is in 'par! materia' with the present one. The Legislature with that knowledge used similar words or the same words or their grammatical variations in phrasing relevant references to the deaths of Hindus. As a settled canons of construction, the Legislature shall be presumed to have employed the self-same words with the selfsame meaning. With the utmost respect to brother Das, J., I must say that the word 'when' - the first word - in Sub-section (2) cannot force the construction of future death upon us. If that were so, the words 'at the time of his death' would be wholly superfluous. It would do to frame the Sub-section by saying
'When a Hindu governed by any school of Hindu Law other than Dayabhag School or by customary law dies having an interest in a Hindu joint family property his widow shall..........'
As the word 'when' did not connote the time of death, the words 'at the time of death' were needed as it would, if the section began with the word 'if instead of 'when.' I would, therefore, agree entirely with brother Narasimham, J., that the word 'when' means 'if or in the event of' and does not refer to 'the time when the Hindu dies.'
51. By way of reinforcing this interpretation, brother Das, J., relies very much upon the word 'devolving' in Sub-section (3) of the section. I would note that the dictionary meaning of the word 'devolve' is 'lapse of an unexercised right to the ultimate owner.' According to him, 'devolve' or its grammatical variations, such as, 'devolution, devolving, &c.;' denote descent by succession or inheritance, as distinct from survivorship. The next step, in his logical process, is that if what the widow gets is by succession or inheritance and not by survivorship, any gap between the time of the death of her husband and the time of her taking is inconceivable. By this process of reasoning, he comes to what he calls 'inescapable conclusion' that the time of 'her husband's death must occur after the Act as she could, in either view of the case, not be deemed to have or not to have taken before the commencement of the Act. Devolution does not necessarily mean descent by succession or inheritance. I would, in this connection, invite attention to the highest authority on the subject, namely, the decision of the Federal Court in the case 'In the matter of Hindu Women's Rights to Property Act, 1937, A I R (28) 1941 F C 72, at p. 78. The passage from the judgment of the Court, delivered by Gwyer, C. J., of India, which I am going: to rely upon and to quote below, was spoken by his Lordship while dealing with 'the fourth question.' o
'That even if it were permissible to uphold the Act to a limited extent, the provision in Schedule (2) relating to the interest of the deceased in Hindu joint family property would be 'ultra vires' the Indian Legislature, on the ground that the mention of 'succession' in Entry No. 7 of List 3 of Scb. 7 does not include or authorise legislation in respect of the benefit which accrues to the members of a Mitakshara joint Hindu family under the rule of survivorship.'
The question thus arose directly and' substantially; and his Lordship, in overruling the contention, proceeds to say, 'inter alia':
'It is equally important to remember that neither in their ordinary grammatical significance nor by a long continued use in a technical sense have the words 'devolution' and 'succession' 'acquired a connotation that would preclude their application to describe the operation of the rule of survivorship as above explained.' Eminent text writers and Judges have used one or the other of these terms to include the accession of right which takes place on the death of one of the members of a Mitakshara joint family. Many enactments of Parliament and of the Indian Legislature have used the words 'inheritance' and 'succession' in juxtaposition, justifying the inference that succession is either another category from or a wider category than 'inheritance' (See some of those enactments referred to in Ilbert's Government of India, Chapter 4, and in Mulla's Hindu Law, p. 4.) If in these enactments 'succession' should be held not to include the principle of survivorship, it would be difficult to say what else that word is. meant to refer to and in any other view the continued administration of that part of the Hindu Law by the British Indian Courts could not have been provided for, because there are no other appropriate words in those provisions. Such being, the position as to the meaning of the words, it is permissible to add that it is difficult to conceive of any reason why in framing Lists 2 and 3 Parliament should have thought fit 'to take away the law of survivorship' from the jurisdiction of the Indian Legislatures, and there is no justification for attributing oversight either, when, as above explained, the language employed 'may properly be held to comprehend the law of survivorship as well.'
* * * *'In one or two instances, eminent writers have employed language suggesting that 'devolution' may comprehend cases of survivorship but not the word 'succession' (See Mayne's Hindu Law,, para. 270,) but it is difficult to find any basis for this distinction. 'Devolution' may be wider in scope than 'succession' in the sense that the former is not restricted to the result of a 'death' (See Order 20, Rule 10, Civil P C), but that is immaterial for the present purpose; and, as already stated, eminent Judges have used both the terms in a sense that will include the operation of the principle of survivorship.'
The point can be further elucidated by referring to an earlier part of his Lordship's judgment, which reads:
'In addition to the constitutional points above summarised, a suggestion was made on the construction of the Act, that it does not provide for the devolution of any property by survivorship nor confers on the widow a right by survivorship, though it gives her the same interest in the joint property as the deceased husband had. This does not seem to be tenable. It is true that Section 3 of the Act does not use the word 'survivorship', and it may be that the widow taking a share under the Act does not become a coparcener with the other sharers; but there can be no doubt that in the cases in which, it gives to the widow of a deceased coparcener a right to a share in the joint property which she did not possess under the pre-existing law, it takes away to that extent the benefit of the rule of survivorship which would have accrued to the remaining coparceners. The reference must, therefore, be dealt with on the footing that so far as its effect goes, the Act does legislate 'with respect to' the law of survivorship.'
If I may say so with great respect, in the illuminating judgment of Gwyer, C. J., the connotation of 'survivorship' has been rightly commented upon. It is a term which is borroyjed from the English Law as what takes place on the death of a coparcener and bears resemblance to the operation of principle of survivorship in the case of joint tenancy on the death of one of the joint tenants according to the English jurisprudence. Lord Dunedin in 'Baijnath Prasad Singh v. Tejbali Singh', 43 All 228, sounded a note of caution about the use of the terms 'coparcenary and coparcener' in relation to the Mitakshara joint family. Gwyer, C. J., observes that the note is equally applicable to the use of the terms 'joint tenancy and survivorship' for the incidents associated with joint ownership under the Mitakshara Law. 'The only degree of resemblance between the two systems of law is the 'jus rescendi' and the effect of death of one coparcener, namely, an extinction of the deceased person's interest and diminution in the number of sharers whose preexisting interest extended over the whole property.' This is just the reason why, when a coparcener dies, no property, nor even his interest, devolves upon any person. It remains in the' coparcenary to be worked out and separated at the partition in favour of the person who can represent him at the time. That it devolves upon the widow is an exception to the rule.
52. In order to make the position clear, I would for a moment consider what should happen in the case of the death of a Hindu after the Act leaving a widow and a body of coparceners. It is clear at the moment, the husband's interest will become extinguished and would lapse in the same manner as it would if the Act were not in force with the only difference that the number of persons for whose benefit the effect of extinction will operate will include the widow. The interest thus grows in her and can be not Inappropriately described as devolving on her by survivorship. Like all other survivors, she should acquire a right of claiming partition. My learned brother Das, J., relies upon a decision of the Patna High Court in holding that accrual of this right is by way of inheritance. The decision is reported in the case of 'Siveshwar Prasad Narain Singh v. Haranarain Mal', AIR (32) 1945 Pat. 116. What was held in that case by Fazl Ali, C. J., (as he then was) is summed up in the following words:
'Therefore if the interest which she has in the property at present is an asset of the husband, then it can be lawfully oattached. As I have already stated if she acquired the interest of her husband as an heir, then it must be deemed to be the latter's asset in her hahds.'
I have nothing to disagree with this learned judgment. But I do not consider, it supports the theory that the process that takes place at that psychological moment is one of inheritance as distinguished from devolution by survivorship. The law amends the Hindu Law to the effect of adding the widow to the list of survivors as if she would be a member in the corporate body of the coparcenary for the purpose of devolution of his interest. The character or extent of such devolution is to be determined according to the rule implied in the words 'she shall have the same interest as her husband had at the time of death.' The judgment of Venkataraman Rao, J., of the Madras High Court in the case of 'Sardambal v. Subbarama Ayyar', AIR (29) 1942 Mad. 212, to be presently referred to, would make the position clear as to why the creditor of the husband can lawfully attach the widow's interest in the joint family property accruing to her under the provisions of this Act. A relevant passage occurring in the judgment of Gwyer, C. J., which runs as follows will throw light on the subject:
'Whatever may be the position under the English Law, the theory of extinction does not exactly (in the sense 'completely') describe the position which arises on the death of a member of a Mitakshara joint family. The result of a long course of decisions is that certain legal acts continue to operate on the interest of the deceased even when what is ordinarily spoken of as the rule of survivorship is taking effect.' (the bracketed words are mine.)
The following extract from the judgment of Venkataraman, Rao, J., is very illuminating:
'If for instance an undivided member dies leaving a son and also his widow, the property would devolve upon both of them and though, so far as the widow is concerned, her interest is limited, no such limitation can be placed upon the interest taken by the son. It cannot be said that the interest of the son is attached but not that of the widow. 'The fact that a right of partition is conferred upon the widow goes to show that the property is taken by her subject to all the rights and liabilities which the husband would have had because it is the same interest that is conferred upon her.' Therefore, giving the language its plain meaning, the property taken by her must be held to be liable for the payment of her husband's debts and is liable to be attached by the plaintiff.'
It is abundantly clear from the above that liability to her husband's debts of the interest accruing to her on his death, under the benefits of the Act, arises not on account of the process of accrual being either succession or inheritance rather than survivorship, but because she gets the same interest that her husband had which means she gets it subject to the rights, obligations, liabilities and equities that would have been available to any outsider as against that interest. To use the words of Sir Maurice Gwyer, the legal act of the liability incurred by the loan of the husband is already in operation as against the interest that he had. The other coparceners cannot be said to be getting the 'same interest' for the purpose of the liability. The joint family property in the hands of the son is liable for the father's debts. That does not necessarily make out the position that the son gets his father's interest by inheritance. In Madras jurisdiction, a coparcener can sell his interest in family property. That does not mean that he succeeds by inheritance, not by survivorship, if Pazl Ali C. J. used the word 'heir' or 'succession', he did not mean' to use it strictly in the technical sense; he meant nothing other than what Venkataraman, J. laid down, on which he relied, it being the admitted position that by that interest accruing to the widow, the coparcenary does not become disrupted, or, in other words, the share accruing to her does not become separated, carved out and held as an asset different from the assets of the joint family property. What his Lordship said was true for the limited purpose of enforcing the liability for the husband's debts against the interest devolving on her. No corrolaries should be drawn to support the proposition that she must get the interest at her husband's death or not at all. In the Hindu law jurisdiction, a coparcener's creditor can follow the joint family property in the hands of his sons but not so if the property is in the hands of his sons living in commensality with others who are collaterals to their father. This does not amount to mean that the sons get by inheritance while others get by survivorship, in a joint family constituted by father and his sons, the father dying after the Act, the entire property comes to the possession of the sons and their mother. The property would be equally liable in their hands even though the sons are surviving coparceners while the mother, as a widow, is assumed to be heir. My conclusion is that the fixation of this liability on the assumption that the deceased husband's interest is an asset in the hands of his widow is not at all a relevant consideration for the purpose. It would have been relevant if it were an infallible proposition that an heir, or, in other words, one who takes by inheritance, must take at the death of the propositus. Various other estates may interpose to postpone the vesting of succession to a later date. This is illustrated by the reversionary succession interrupted by widow's estates' or other life estates, such as, that of a daughter, sister and so on. The Hindu law introduces the fiction of death of the last male holder occurring, as it were, after the said estates expire.
53. I would further point out that I could come across no decision in which it has been held not only that the interest of the husband, that is acquired by the widow, gets disrupted from the joint family property once for all, and never comes back to it even though the family continues to function and exist as a corporate coparcenary body after the widow's death, but also that it goes, on her death, to her husband's heirs as distinguished from coparceners or survivors. On the other hand, one of the decisions cited by my learned brother Das, J. lays down the contrary, I would, in this connexion, invite attention to a decision of the Lahore High Court in the case of 'Vinod Sagar v. Vishnubhai', AIR (34) 1947 Lah. 388. Paragraphs 56 and 57 of the judgment delivered by Abdur Rahman, J. deal with the question. The sum and substance of this judgment is to the effect that accrual or growth of the right of a widow does not amount to disruption of the coparcenary nor separation of any particular interest from the joint family property, until the widow effects a partition by metes and bounds; that even if she divides her interest by metes and bounds the rest of the joint family and joint family property remain completely unaffected; that until a partition is brought about, the Karta of the joint family would be entitled to act as such and the widow shall be bound by his acts in the fullest possible sense in his capacity to represent the entire of the coparcenary. On partition, the Karta's power of management and control would be kept in abeyance in regard to the property which has fallen to a widow, for such time as she remains in its possession. The learned Judge says:
'Whether its character would change even after a partition by metes and bounds does not arise for decision at this stage, although, as at present advised, I seem inclined to the view that it would not.'
In my judgment, I see nothing in the nature of interest that devolves upon the widow under the Act which, except temporarily for the purpose of enabling the widow to enjoy widow's estate and that on partition by metes and bounds, would alter the character and the destination of the property for the purpose of its ultimate devolution. Such alteration may occur on change of circumstances, such as, family haying broken up in the meantime. If the unit of the joint family and the joint family property, as such, continues till after the widow's death, the estate must return to and merge in the stock of the coparcenary property. I would sum up the position like this that on the death of the husband, his interest in the joint family property would lapse. In the coparcenary estate including her husband's interest, she shall have the same interest as her husband had at the time of his death. That interest will be an unpredicatable and unpredictable one. Under the management of the Karta of the joint family, she shall be bound to sue and to be sued through him, who will represent her and her undivided interest, just in the same manner as he would for the other coparceners and their coparcenary interests. She will have the same right of claiming partition as every other coparceher would have. Till partition her right will be only to maintenance, just in the same manner as that of any male coparcener. I would here quote Gour's Hindu Code, Article 1069:
'But it is clear that even in this family all persons do not possess equal rights. The property which it owns is called 'joint family property,' but it is a misnomer if it implies possession of any common rights other than the right to maintenance.'
When partitioned at her instance, portion carved out she shall be entitled to enjoy separately and during such enjoyment which enures till her death, the dominion of the Karta of the joint family remains in suspension. When she dies the woman's estate goes back to the joint family if it exists. The conception of Hindu law is that after woman's estate terminates, the property goes back to the stock from where it had come. In the present case, the stock is the coparcenary and coparcenary property. It is the same interest that her husband had, that means, a coparcener's interest in the coparcenary property. There is absolutely no guarantee either in the implied conception or connotation underlying the idea of Hindu women's estate or in the language of the Act that would warrant the conclusion that the property should go to her husband's heirs as his separate property, he being considered to be a fresh stock of descent for the purpose of inheritance. I would here quote a few passages from Mayne's Hindu Law at pp. 720-21:
'The Act however does not effect. a statutory severance or disruption of the entire family. To interpret the Act as effecting such a severance would cut across the recognised principles of Hindu Law and would not make for a rational and orderly succession. As the wives of coparceners are undoubtedly members of a joint Hindu family, there is nothing incongruous in the widow of a coparcener being viewed as occupying a position more or less analogous to the position of a coparcener in a Dayabhag family. As the other members of the family will remain undivided and as she cannot be regarded as the widow of a divided member, the joint family system and management will continue as before, probably an advantage. Except to the extent of the widow taking her husband's interest, the Act leaves the rights of the other members of the family untouched. The result is that while the deceased coparcener's interest vests in has widow, his male issue will continue in the strictest sense to be coparceners along with the other male members of the family with mutual rights of survivorship. So also under sub-section (1), in a Mitakshara family, the sons, grandsons and great-grandsons of her husband will be coparceners 'inter se' while the widow will hold' her interest in quasiseveralty but along with them. To hold that the widow of a coparcener who takes his interest on his death is strictly a tenant-in-common with the coparcenary body is not to give full effect to the words in Schedule (2), according to which she is to have 'in the property the same interest as he himself had', apart from the grave complications which it will involve. On that view, she will be entitled to an account and for a definite share of the income, while the others will not be; more than that, it will lead to anomalies' and hardships in connexion with the allotment of shares; and even before partition there would be separate management and representation and separate incurring of debt. 'But evidently the intention of the Act is only to interrupt survivorship and to protect the right of a widow so that she may have the same interest as if she continued the legal persona of her husband till partition'.
'Though, if she were assumed to be a coparcener in the Mitakshara sense, the working of the Act would be easier, the circumstance that she will hold her interest under the Act in quasi-severalty does not materially alter the position of the joint family in other respects.'
54. Substantially, the devolution by survivorship, while acting on undivided coparcenary property, has, dormantly inherent in it, the principle on which the Hindu law of succession is based, which is for the time being eclipsed by the dominant concept of Hindu coparcenary, and the implications implicit in it for the purpose of its corporate functioning. When the time for disruption of the coparcenary arrives, and the coparcenary property is divided, the right by survivorship manifests itself in the form of a right to succession. The deceased coparcener, whose interest in the coparcenary property lapsed, or extinguished itself at the time of his death, is at the time of division represented by those who would be his male heirs within the coparcenary under the laws of inheritance and they will take that interest which he could have taken had he lived till partition. In this view of the matter, his interest remains undisposed of, and what goes down from time to time by deaths and births is the right to represent him which is not, in the strict sense of the term, the same as the right to property. By the time, if the law could interpose a representative of its own making, its effect would be the same as if representatives could be added or deducted by birth, adoption and death under the Hindu law. For the purpose of determining the time of accrual of the widow's interest under the Act, the test of its fluctuability has been applied by my learned brother Das, J. with some amount of rigour. He himself, however, is not certain about its fluctuability and has reserved his opinion about it. In the circumstances, no certain result could be achieved on admittedly uncertain basis. He, in this connexion, has referred to a decision of this Court, to which I was a party reported in I. L. R. (1949) 1 Cut. 483. The aspect of the question with which we are dealing did never arise then. I am still of opinion that on the facts of that case my decision was correct. I do not fear that in the light of the present decision of mine, the decision reached there should have been anything different. At any rate, I am quite sure that such fluctuations as are inherent in the character of 'the same interest as her husband had' would affect the interest before devolution. The question before us in the case of 'Kunja Sahu v. Bhagaban Mohanty', I. L. R. (1949) 1 Cut. 483 was if the widow, on whom the same interest as her husband had had devolved, would be entitled to alienate before partition by metes and bounds. It was argued that 'the same interest' should mean 'the coparcenary inalienable interest that her husband had'. In support of this argument, the decision of Leach, C. J. in the case of 'Chinniah Chettiar v. Sivagami Achi', AIR (32) 1945 Mad 21 was cited, to show that according to the learned Chief Justice Leach the word 'same interest' would compel him to hold that the widow's interest would be subject to such reduction by fluctuation by an adoption as it would in the hands of her husband. To that contention, I observed with great respect, I cannot go so far as that because it would be difficult to assume that her interest will be enhanced on the death of coparcener as it would have had her husband been alive'. My observation is not tantamount to saying that there will be no fluctuation of whatsoever kind. I did not, in fact, dissent from the learned Chief Justice, but I said I could not go to the fullest extent that all kinds of fluctuations including enhancement by fluctuation would also occur. Reduction by fluctuation is permissible but not enhancement, because evidently, as the trend of authorities so far goes to establish, with which I very respectfully agree, she is not a coparcener in the full sense. The main decision proceeded on the basis that hers was a widow's estate according to sub-section (1) and the meaning of 'same interest' in sub-section (2) must be arrived at in that context. As such an estate, it is alienable and its main attribute cannot be cut down by the doctrine of fluctuability being called in aid. At any rate, I must observe once again that the problem of fluctuability creates greater difficulty in the case of post-Act widows than in the case of pre-Act widows. To the question arising in the latter case, there is a very simple answer, namely, that she must take the same interest subject to such variations as might have in any way impaired it by time a right accrues to her. Suppose, the entire joint family property is sold away for joint family debts between the husband's pre-Act death and post-Act devolution upon the widow. The benefit of the Act cannot be said to materialise not because the Act does not apply to pre-Act deceased's widow but because the interest that the Act intends for her was not in existence at the time the Act came into operation. The same is the case with regard to mutilation -of the said interest or its impairment within the time by agencies either voluntary or involuntary. Take the simple illustration of a Mitakshara son. He becomes a coparcener on birth, but he cannot in any event challenge an alienation of the joint family property that had taken place before he was legally born. The real difficulty arising out of fluctuability or otherwise would be almost baffling in a case where the interest devolves upon the widow on her husband's death after the Act and she never alienates her interest nor partitions till a number of deaths and births in the coparcenary body had occurred and then she comes out with a suit for partition claiming that she should get the same interest as her husband had at the time of his death. In case the fluctuation takes place from such a cause as operates on the interest that her husband had, that is, a coparcener's interest in coparcenary property from its inherent character the widow's rights thereto must be governed by it, even to its curtailment. There may be cases in which the fluctuation takes place on account of (sic) due to increase in the number of coparceners of the same degree of relationship with the common ancestor. In such cases, the widow may not be entitled to the increase, because she does not inherit her husband's status in the family.
55. Besides, as I have already expressed myself very clearly, in applying the rule of fluctuability, we shall have to make compromises or exceptions in order to meet the ends of justice, illustrations of which are numerous in the rules of Hindu law or custom in their application to the realities of life. It is too difficult to lay down any inflexible rule. Each case shall to be decided on its own facts. Fluctuations due to natural causes of deaths or births in the coparcenary body are associated with gain or loss of status. A new birth brings in a coparcener. That affects not the status but has the potentiality of affecting the interest of others, while death, resulting in loss of status of the deceased, attracts accrescence in the case of those only who have the requisite status at the moment. Hence the difference. Assuming my casual observation in that case, where, too, I have observed logical deductions would land us in anomalies rather than remove them, to be true, my present conclusion is not in the least affected.
56. The learned author of Mayne's Hindu Law, 10th Edn., has given an illustration at p. 722 at the end of Article 592, which I will quote here:
'The anomaly of a widow holding a woman's estate in the undivided property of her husband must necessarily be dealt with as a special case: the interest she takes may well be a fluctuating interest till there is a partition.'
It must be remembered, however, that such cases will occur very rarely, if not, not at all. So long as any coparcener dying after the death of the concerned widow's husband leaves surviving him any male issue within the prescribed degree, or even a widow of his, or any of his male descendants, the concerned widow's interest shall not be affected as they or any one of them shall represent the subsequently deceased coparcener at the partition. The ambiguity, if any, being common to the cases of pre-Act and post-Act widows, its determination is not material for testing the correctness of either of the rival contentions.
57. I would just point out an instance which would testify to the correctness of the view that I have taken. Suppose the Act operates only in cases where a Hindu dies after the Act both within the meaning of sub-sections (1) and. (2) of section 3. Take a Hindu dying after the Act who leaves besides his widow, a daughter-in-law and a granddaughter-in-law whose husbands predeceased him before the Act. The rule of devolution of interest on the last two widows will operate differently according as sub-section (1) or (2) of section 3 applies. In the former case, they should each get she share of a son or grandson along with the widow; but in the latter case, they will get nothing while the deceased's widow will get the entire interest. This will happen because their husbands died before the Act. In this connexion, I should note that it is not disputed that the benefit of subsection (1) will accrue to the predeceased son's widow or predeceased grandson's widow even if their husbands died before the Act, provided that the properties to be inherited were those of the Hindu dying intestate after the Act, in which their husbands had no vested interest at the time of their deaths. They shall, however, be deprived of the interest that their husbands had at the time of their deaths in coparcenary estate. It would be difficult to appreciate that this discrimination is within the intendment of the Act. The object of the amendment was obviously to give the right that a Hindu had, or could have had, if alive, at the (sic) coparcenary, to his widow. This object was, however, subordinated to the consideration of leaving undisturbed transactions, or considerations that were lawfully completed under the law in its preamended state. If we presume the Legislature to be free from arbitrariness and guided by rules of justice and equality to all, similarly circumstanced, we cannot make the assumption of discrimination that must have to be made in order to justify the opposite view. Sub-section (2), interpreted as I do, would completely obviate the anomaly referred to. If the rival contention is acceded to, their widows get an interest in the property in which they had none, while they are excluded from the coparcenary property in which their husbands had an interest an the time of their respective deaths. That such widows were intended to be given better rights cannot be denied in view of the provisions of sub-section (1) of section 3.
58. In expounding that to give the benefit of the Act to women widowed prior to the Act would amount to divesting the coparceners of the normal rights vested in them from their births, my learned brother, Das J. has enumerated the various rights and. privileges, either in existence or in expectancy, of a coparcener in a Hindu joint family. On the assumption that they are vested rights, their impairment, even to the slightest possible degree, is held out as the determining factor of retrospectivity. Though in my view they are not so, I should, assume for argument's sake that what my learned brother Das, J. enumerates as vested rights are so in reality. At the same time, I would assume with him that the Act cannot be given the meaning so as to affect such rights. The result that would inevitably follow is that, so long as a single coparcener, born prior to the Act, is alive in a joint family, at the time of the post-Act death of a Hindu coparcener, his widow shall not be entitled to the benefit provided for under sub-section (2) of the section. This, in other words, means that in order that the Act shall operate prospectively, the joint family must have been one in which the surviving coparceners would be all born after the Act, or one that is constituted after Act. It is, however, conceded that the Act must operate in all cases of deaths of coparceners after the Act, independently of the fact that the surviving coparceners had acquired their vested rights by births before the Act came into effect. In this contention, no distinction is made as to the impairment of the rights of the surviving coparceners between those born before and those born after the Act. In that event, the Act must be taken to be retrospective in its very nature. The distinction between the effects of the two rival interpretations in this respect, therefore, is without difference. The apparent retrospectivity is thus not real, nor it is sanctioned by the language of the Act. It will apply to the devolution of interest of a Hindu dying before as well as after the Act, with the same effect on the rights of surviving coparceners. It has been accepted by all such eminent Judges and Jurists as had had the occasion to consider it that the operation of the Act is prospective in nature notwithstanding that its operation does deprive all the coparceners born before the Act of what brother Das J. calls vested rights of theirs. These views, for which I am full of respect, cannot be explained except on the hypothesis that the rights of the coparceners before partition are not vested rights. It is too late in the day to flout the views of theirs. So in whatever manner and extent the surviving coparceners' rights are affected, its operation should not be condemned as retrospective. I shall not be understood to advocate the position, nor has it been pointed out to us, that acceptance of my view would amount to reopening the completed transactions, such as, pre-Act alienations or partitions or the like. The Act operates only on joint family having coparcenary properties that continue to be so at the time it comes into force. This is exactly the view that has been taken by my Lord Varadachariar, J. in the case of 'Umayal Achi v. Lakshmi Achi', AIR (32) 1945 F.C. 25 at p. 33. The paragraph in which this position has been expounded is very much liable to be misconstrued; but on a close reading it is clear that it means exactly what I have just now said above. The passage that can give rise to misconstruction, if and when read stripped off from its context, reads:
'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 circumstances that her husband died before the passing of the Act.'
The death of 'her husband' before the Act was considered to be the circumstance on which depended the result of 'derivation of no benefit from the Act' for the plaintiff. That is because on her husband's death, prior to the Act, the joint family, as such, came to an end with the result that at the commencement of the Act there was no joint family nor joint family property. This position is made clear by his Lordship by illustrating it on reference to a hypothetical case. In this case, though not expressly but by necessary implication, it may be understood that B's widow lost her husband before the Act. This is made clear by the learned Judge saying that the adoption by A's widow was after the Act. Last comes the concluding passage which reads:
'The only possibility of calling the Act to her aid is by the application of Sub-section (2) of Schedule if a double fiction could be imported so as to justify the assumption not only that, 'the joint family was being continued by the adopted boy but that B must be deemed to have died after the adoption. On this assumption, B's widow could retain a half of the estate as against the adopted son of A, only if B's ownership could be described as 'interest in joint family property.'
An 'interest in the joint family property' in the aforesaid passage is quoted from sub-section (2) of Section 3. Three things are clear from this passage, viz., that (a) the husband's interest at the time of his death, while he is sole surviving coparcener, is to be distinguished from 'his interest in the joint family property'. (It can be his separate property which according to the learned Judge is not embraced within the scope, intendment and object of the Act. In order to be 'an interest in the joint family property' within the meaning of Sub-section (2), it must be an interest in such property for the purpose of the sub-section only when at the death of the widow's husband one or more other male coparceners were alive); (b) the joint family must be continuing from before the commencement of the Act till the Act came into force, (c) so that the interest devolving on the widow could be said to be 'an interest in the joint family property' that her husband had. Like the case of a completed partition of the family estate accompanying a disruption of the coparcenary prior to the Act the death of the widow's husband as the sole surviving coparcener amounts to a completed transaction or part consideration which, according to my view, is not in the least affected by the operation of the Act. I shall show presently that conceding that my view is one demanding retrospective operation of the Act, it is limited and confined to cases where such past transactions or considerations are not affected. It is well known as a canon of construction of statutes that a statute may be retrospective to certain extent and no further.
59. I would here refer to a passage from the. judgment of Gwyer, C. J. of India, in which his Lordship says that the Hindu Women's Rights to Property Act is a remedial Act seeking to remove or to mitigate, what the Legislature presumably regarded as a mischief; and as such it ought to receive a beneficial interpretation, and even though it be found in a small minority of cases to prejudice rather than to benefit those whom it was intended 'to help, this would be no reason why the Court should not adopt the construction which is on the whole best calculated to give effect to the manifest intention of the Legislature.' Brother Das,, J. does not dispute this proposition but says that the beneficial construction must be one. admissible under the language of the Act. True, when two reading or two interpretations are equally admissible, this doctrine would give preference to the one which would render a larger measure of. benefit to a larger number of people. With reference to this, my learned brother Das, J. in his judgment in paragraph 43 has said
'But it is not clear what particular class of women are intended to be benefited thereby. It cannot even be maintained that at least all widows are intended to be benefited thereby. Indeed the. contrary can be demonstrated, viz., that certain, widows who were entitled to rights under the preexisting law are deprived of their rights. For instance, the mother or daughter of a widower (male) haying self-acquired property who leaves him surviving no male issue but a widowed daughter-inlaw is excluded by the said daughter-in-law by virtue of Section 3 Sub-section (1). Therefore the Act helps only some women who are widows and not all women or all widows.'
I am sorry to have to say that I do not at all comprehend that the mother or the daughter of a widower has been deprived of her reversionary right to succession by virtue of sub-section (1) of section 3. They do, notwithstanding the Act, retain their places in the list of heirs. Mother is a later heir than son, grandson, great-grandson, widow and daughter of the last male holder. The Act has introduced son's widow, grandson's widow and great-grandson's widow in the places of their husbands. By this process, the chance of succession of either the daughter or the mother is not in the least rendered more remote than what it was before. It has also to be noticed that these widowed daughters-in-law or grand-daughter-in-law take side by side with the living sons and grand-sons in whose presence neither the mother nor the daughter could inherit, even though daughters-in-law and the grand-daughtersin-law were not conferred the right to succeed, under the Act. So the apprehended consequence is. more imaginary than real. On the contrary, the Act has increased the number of women heirs in. the place of their husbands along with the male relations of the same degree without removing other women relations even a step further than the places they have been occupying under the. Hindu law. Here, I would point out that the Act pre-eminently intends to benefit predeceased sons' and grandsons' widows. Brother Das's construction would defeat this. Sub-section (2) of Section 3 uncontrolled by Section 4 would achieve this very efficiently. This establishes the correctness of my exposition.
60. My learned brother Das, J. would ask me to interpret the Judgment of Mr. Varadachariar J. of the Federal Court, already referred to in the way which he has done in order that I may appear to, pay due regard to it as a Judgment of a Superior Court by which I am bound. But it is within my right to comprehend the judgment in my own way, and my learned brother should kindly remember that I have followed the judgment of Mr. Justice (sic) the view that I have taken. If his Lordship Mr. Justice Varadachariar has said that the Act is prospective I have not said anything to the contrary. On the other hands, I have not fallen a prey to the contention that all other considerations being equal, retrospectivity would consist in merely relying on a pre-Act event as attracting its operation. In either of the cases, impairment or divestation of pre-Act acquired coparcenary right being common, there is no logic in distinguishing one as prospective from the other as retrospective. I do not apprehend, as brother Das, J. says, that distortion of domestic equilibrium would occur.
61. In my judgment, the view that we have taken will restore the equilibrium in the domestic sphere of life, where it has been lost. It will remove the cold indifference with which the Hindu widows are being treated by their husband's coparceners and relations even in cases where their husbands have thrown all their earnings into the family funds and added immensely to the opulence of the coparcenary and have, in substance, built it up. It is apprehended by my learned brother that this pronouncement will adversely affect or otherwise reopen completed transactions and thus unsettle settled rights and obligations created on their basis and should give rise to numberless litigations and liabilities changing the legal relations already established. This apprehension is, to my mind, wholly unfounded. In this connexion, I shall refer to section 3 of the Orissa Act (V of 1944) which reads :
'Notwithstanding anything contained in section 2, where any person, who, but for this Act, would have been entitled to any property, has been in possession thereof or has made a transfer thereof, his possession up to the date of the commencement of this Act shall be deemed to be as lawful, and the transfer so made by him shall be deemed to be as valid, as if this Act had not been passed.'
62. Besides, I shall draw attention to the fact that it is not a case in which we are going against a series of judgments which had founded legal rights and obligations amongst the people. Even so, that there will be a few cases in which completed private transactions will have to be reopened should not stand in our way of interpreting the Act rightly to the best of our judgment. The principle of 'stare decisis' is not called for in the facts of this case. I would conclude, therefore, my judgment with the remark that, with the greatest deference to the views of my learned brother Das, J., I could not persuade myself to hold that by taking the view of giving benefit to the widows, whose husbands died before the Act, we are at all giving it a retrospective operation so long as it does not affect the completed transactions or past considerations that took place before the Act. If anything is affected, it is the presumed chance potentiality of pre-Act born coparceners. A similar argument was advanced in relation to the construction of the Hindu Law of Inheritance Amendment Act and it found favour with the learned Judges in the case of 'Krishna Chettiar v. Manikammal,' 57 Mad. 718. I would cite a passage from this judgment of Madras Court, which was quoted by Sir Pazl Ali C. J., who delivered the judgment of the court in the Patna Full Bench case of 'Pokhan Desadh v. Mt. Manoa', AIR (24) 1937 Pat. 117.
'At p. 187, the learned author (Maxwell) observes that a testator is presumed to have in view the state of the law when he made his will. If it be so, we can reasonably presume that a person competent to make a will is satisfied with the state of the law regarding the order of succession to his estate among his heirs, if he prefers to die intestate without making a will . If he wishes to prefer a remoter to a nearer heir he will certainly have recourse to the making of a will. If he does not make a will, it may be because he wishes that his property should devolve according to the existing law of succession. The policy of the legislature is not to make a subsequent enactment operative against the estate of such a man and thus frustrate his presumed intentions, unless, for special weighty reasons, such a retrospective operation is bound to be necessary. If Act 2 of 1929 is given suck a. retrospective operation, it would be frustrating the intentions of the last male owner who preferred to die intestate before the passing of this Act. Such an anomaly will not arise if this Act should be held to apply only prospectively'.
In reference to this contention, Fazl Ali, C. J., in that Patna Pull Bench case, observed:
'The point to be considered is whether we can legitimately draw any presumption as to the intention of a person who has died intestate.' I venture to point out respectfully that if it is permissible to say that a man did not leave a will, because he was satisfied with the state of the law regarding the order of succession to his estate, it is equally permissible to say that his intention might have been to let the law take its course and that he was not thinking of any particular heir at all. It being impossible to predicate as to who would succeed to the estate until the succession opens, it is difficult to say that a person who dies intestate had contemplated at the time of his death that he would be succeeded by any particular person or persons. There will be still less justification for presuming that if he had known that a change was going to be effected in the existing law, he would have disposed of his property by means of a will. That being so, there is no question of frustrating the presumed intention of a person to whose estate the Act applies, and as already stated, to hold that the Act applies only when succession opens is not to give it a retrospective effect and therefore the principles bearing upon the question as to when a statute shall be construed to have retrospective operation have no relevancy'.
The observations of Fazl Ali, C. J. will apply 'mutatis mutandis' to this case with reference to the view of my learned brother Das, J., particularly, as the statutes under consideration are in 'part materia'. ......
63. In the premises aforesaid, I would agree with the order proposed by my learned brother, Narasimham, J.
64. It is therefore ordered that this appeal be allowed and that the widow concerned will have the same interest in the joint family property as her husband had at the time of his death. There will be no order for costs.