G.K. Misra, J.
1. Gobardhan (defendant No. 2) and Duryodhan Panigrahi (defendant-1) are brothers. Shakuntala (not a party to the suit) is the wife of defendant No 1. Biranchi (husband of plaintiff Lilabati and the son of defendant No. 1 died in 1949. In 1960 plaintiff brought the suit for partition claiming eight annas interest in schedule B property of the plaint which fell to the share of defendant No. 1 in a partition between the two brothers. Defendant No. 1 had claimed that one Ranjit was his adopted son. This argument has been found against by the Courts below. Plaintiff's suit is based on the averment that on the death of Biranchi in 1949, she was entitled to the same interest as her husband had in schedule B property. Defendant No. 1 contested the suit alleging that Shakuntala was a necessary party and is entilled to one-third share. The Courts below negatived the defence contention and decreed the suit for partition of eight annas interest in favour of the plaintiff in schedule B property. Against the appellate decree the second appeal has been filed by defendant No. 1.
2. Law is well settled that when the husband is alive, the wife herself cannot demand a partition. But when a partition takes place amongst the husband and sons, the wife is entitled to a share equal to that of a son. Law has gone so far as to lay down that even where a partition had already taken place amongst the father and the sons without reserving a share for the wife, the partition can be reopened. If Biranchi had been alive and had filed the suit, Shakuntala would have been entitled to a share and the schedule B property would have been divided into three shares amongst defendant No. 1, Biranchi and Shakuntala.
3. The aforesaid conclusion is not affected by the fact that Biranchi died in 1949. The Hindu Women's Rights to Property Act, 1937 was in force in the ex-state of Sonepur in 1949. In (S) AIR 1955 Orissa 135 a Bench of this Court held that the Act gives the widow just what her husband had, namely his undivided interest subject to fluctuations arising out of varying fortunes of the family. The widow is entitled to a share in all the properties of the family as they existed on the date of partition irrespective of whether they existed at the time of her husband's death or not. In AIR 1965 SC 825, Loti Lakshmi Perumal v. Koti Krishnavenammal, this decision was accepted as laying down the correct law. The basis of the decision is that on the death of the husband, there is no severance of joint status. The right of survivorship remains in a state of animated suspicion. The interest of the widow is a fluctuating one and does not crystallise into definiteness until either a severance of joint status or a partition by metes and bounds takes place. The quantum of interest which a Hindu widow is entitled to under Section 3(2) of the Hindu Women's Rights to Property Act is to be determined on the date on which she seeks to enforce partition under Sub-section (3) of Section 3.
4. As a logical corollary from the aforesaid dictum, it follows that the interest of the plaintiff had not been carved out until the suit for partition was filed. On the date of the suit, Shakuntala is alive. Conferment of absolute interest on the widow under Section 14 of the Hindu Succession Act does not affect the aforesaid Rule as the son had absolute interest Section 3 (2), the Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced that she continued the legal persona of the husband till partition. The right of the other members of the family would be worked out on the basis that the husband died on the date when the widow passed away : (see AIR 1954 Mad 576 (FB) and AIR 1965 SC 825). Shakuntala is entitled to a share equal to that of her son represented through the plaintiff. Plaintiff is entitled to one-third and not one-half share of Schedule B property.
5. It has been brought to my notice in course of argument that the final decree in the partition suit had been passed before the slay order reached the lower court. As the preliminary decree has been modified, the basis of the final decree disappears. The final decree is accordingly set aside. Shakuntala be made a party in the final decree proceeding and one-third share of schedule B property be allotted to the plaintiff's share.
6. In the result, the judgments of the Courts below are set aside and the appeal is allowed.
In the circumstances of the case, parties to bear their own costs throughout.