1. This second appeal is against the confirming judgment dated 30-1-48 of Sri C.C. Coari, District Judge of Cuttack, in M. A. 124 of 1946. It is defendant 1 who is the appellant in this second appeal.
2. The plaintiff (Narasingha Chandra Panda), Dibyasingha (the deceased husband of defendant 2) and Babaji were three brothers. Babaji died long ago leaving no heirs. Dibyasingha died on 20-4-34. Defendant 2, the widow of Dibyasingha, executed a deed of sale in favour of defendant 1, the appellant, on 16-2-44. The plaintiff's present suit is on the allegation that Dibyasingha died in a state of jointness with him, and as such, plaintiff is the sole surviving coparcener, and defendant 2 had no right, title or interest whatsoever in respect of the property to execute a valid deed of transfer in favour of defendant 1. So he prays for declaration of title and for confirmation of possession, or in the alternative, for recovery of possession.
3. The defence is that there was separation in status between the plaintiff and his deceased brother Dibyasingha; as such, defendant 2 could execute a valid deed of transfer in favour of the appellant.
4. Both the Courts below have come to a concurrent finding that in fact there was no severance of interest between the plaintiff and Dibyasingha during the life time of the latter. The Courts below, to come to such a conclusion, have relied on the position that only one assessment of Chowkidari tax has been made and that is in the name of the plaintiff as appears from Exs. 1(Ka) and 8 series. The plaintiff also has been paying rent in respect of the entire family land in his own name. The plaintiff alone has been assessed for paying, water-rate tax in the year 1938-39. They have further relied upon sale-deed (Ex. 5 dated 7-3-32), simple bond (Ex. 4 dated 2-8-33) and. mortgage bond (Ex. 4(a) dated 15-5-33), executed by both the brothers Narasingha and Dibyasingha describing them therein as members, of a joint Hindu coparcenary.
5. The defence had relied very much in the Courts below upon two sale-deeds (Exs. B and A). Exhibit B is dated 27-5-28, executed by Dibyasingha in respect of his eight annas share and in the recitals he excludes the share of the other brother. Exhibit A is dated 28-5-30, executed by Narasingha in favour of the same person, reciting therein that as he had purchased the share of the other brother by a previous deed he is, executing the sale deed in, respect of the balance of eight annas share in the property. The plaintiff explains that on account of his absence at Calcutta and on account of the reason that money was necessary for urgent family necessities to perform the marriage of a sister, Dibyasingha executed the first sale-deed; and as the vendee declined to have one sale-deed from one of the brothers for the entire plot that necessitated the execution of two sale-deeds, and so he had to execute a separate deed in the year 1930. This explanation was accepted by both the Courts below.
6. Mr. De, appearing on behalf of the appellant, relies very much upon the two deeds in support of his argument that the two brothers, by executing two deeds, have defined their shares which appears from the recitals of the documents themselves and that the Courts below are wrong in taking into consideration their subsequent conduct or any explanation for executing such deeds. He relies upon a decision of their Lordships of the Privy Council, reported in --'Harkishan Singh v. Partap Singh', AIR 1938 P. C. 189 (A). Their Lordships at page 190 observe. :
'Once the shares are defined, there is a severance of the joint status. x x x x The defining of shares may be expressed by an agreement between them containing a declaration of their shares in the estate. Even an agreement between the members of a joint family, whereby they appoint arbitrators for dividing the joint family property among them, amounts to a severance of the joint status of the family from the date of the agreement. x x x x x Nor can the legal construction or legal effect of an unambiguous document defining shares of the members of the family be controlled or altered by evidence of the subsequent conduct of the parties.'
7. We have very carefully gone through both these documents. The documents do not make out a case that the brothers had agreed to define their respective shares. As we haveobserved above, in the first document Dibyasingha recites to have executed the transfer in respect of his eight annas share of the property. The recital in the second document is that as the vendee has already purchased the eight annas share in respect of the property, the second document was being executed in respect of the balance. There is no recital in any of these documents that in fact the brothers had agreed to have defined their shares at any time or that the brothers were separate in status. In our view, the mere execution of document by one of the coparceners in respect of his share in the property does not constitute an unequivocal expression of an agreement defining the shares of the brothers or the intention to separate. The first point taken up by Mr. De therefore, fails.
8. The second point taken up by Mr. De is that even though the husband of defendant 2 had died in the year 1934, that is prior to the coming into force of the Hindu Women's Right to Property Act (No. 18) of 1937, as amended by Act 11 of 1938, the widow will be entitled to the interest of her deceased husband as he had at the time of his death, under the provisions of Section 3, Clause (2) of the Act.
9. It will be pertinent to quote the provisions of Sub-sections (1) and (2) of Section 3 of the Act.
'(1) When a Hindu governed by the Dayabhag 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 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 Dayabhag school or by customary 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 Sub-section (3), have in the property the same interest as he himself had.'
10. As we have seen from the facts stated above, Dibyasingha died in the year 1934 leaving the plaintiff as the sole surviving coparcener. A similar case came up before their Lordships of the Federal Court, reported in --'Umayal Achi v. Lakshmi Achi', AIR 1945 P. C. 25 (B). In that case, one Aninachalam Chettiar was the last surviving coparcener owning the suit properties. He married three wives, the first of whom died in 1913 leaving behind her three daughters and a son; the eon died in the year 1934 leaving his widow the plaintiff in that suit. Arunachalam, died on 23-2-38 leaving behind him his two widows, the plaintiff (the widow of his predeceased son) and the two daughters. The widow of the predeceased son claimed eight annas share in the properties left by Arunachalam.. It wasfirst contended that she was entitled to inherit in the like manner as the son as the properties left in the hands of Arunachalam were his separate properties as contemplated under Sub-section (1) of Section 3 of the Act. Their Lordships held that the properties left in the hands of the sole surviving coparcener or the property obtained by one member of the Hindu joint family on partition cannot be taken to be separate property as strictly understood or as contemplated under Sub-section (1) of Section 3 inasmuch as if a son would be born to the owner of the property he would be entitled to interest in the property by birth. The property cannot be taken to be a self-acquisition of the sole surviving coparcener in respect of which the son will be entitled to inherit only after the father's death. Their Lordships, therefore, negatived the contention that the plaintiff, the widow of the predeceased son, could take shelter under Sub-section (1). It was further held, as appears from the judgment of Varadachariar J. that she would not be entitled to any benefit arising from Sub-section (2) of Section 3 as her husband died before the passing of the Act. The observation of Varadachariar J. runs to the effect:
'It is true that, on the above view (that the properties in the hands of Arunachalam are not his separate properties), 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.'
His Lordship further observes :
'It (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.'
From these observations quoted above and the very context from which these observations appear, it seems clear to us that it was decided in that case that the Act is prospective and not retrospective and that the widow if her husband had died prior to the Act came into force, is not entitled to the benefits under Section 3(2).
11. Mr. De strongly relies upon a Special Bench decision of our High Court reported in -- 'Radhi Bewa v. Bhagwan Shau'. AIR 1951 Orissa 378 (SB) (C), in support of his contention that even though Dibyasingha had died in the year 1934, that is prior to the coming into force of the Act, the widow is entitled to the benefits under Section 3(2). Of course, it was decided in that case that Section 3(2) of the Act applies to person who becomes widow not only after the commencement of the Act but also to a person who becomes a widow before the commencement of the Act so long as the interest which her husband had in the joint family property at the time of his death had not vested in any other individual either by partition of the joint family property or by valid alienation. In order to attract its operation the joint family must be continuing from before the commencement of the Act till the Act came into force. The Act operates only on a joint family having coparcenary properties that continue to be so at the time it comes into force. Manifestly this decision excludes cases of the present nature where, before the Act came into force, the property had vested in the sola surviving coparcener as in the plaintiff in the present case. The matter is made perfectly clear when you refer to the passage quoted below from the judgment of Ray C. J. appearing at p. 401. While distinguishing the above decision of the Federal Court, his Lordship observes:
'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.'
We may refer to a passage in the judgment of Narasimham J. also in support of our above conclusion. At p. 385, Narasimham J. while distinguishing the decision of the Federal Court, observes:
'The use of the word 'prima facie' 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.
'To conclude: The Act being a remedial Act there seems no justification for not giving full effect to the words of Sub-section (3) so as to embrace within its scope persons who became widows not only after 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.' In the case before their Lordships of the Special Bench case, at the time of the death of the husband of the widow of a coparcener before 1937, there were more than one coparceners, and, as such, in the view of their Lordships there was a continuance of joint family and the joint family property till the Act came into force as contemplated under Sub-section (2) of Section 3 to give benefit to the widow even though her husband died prior to 1937.
12. In our view, therefore, cases of the present nature, where on the death of the husband of the widow prior to the Act the entire property vested in the sole surviving coparcener, have been clearly and specifically excluded in the aforesaid Special Bench case. The present case is not covered by the Special Bench decision of our Court. Both the points taken up by Mr. De having failed the appeal fails and is dismissed with costs,
13. I agree that the appeal should be dismissed, but would like to add a few words in view of the strenuous contention of Mr. De that the Hindu Women's Right to Property Act (Act 18 of 1937) is retrospective in nature and would apply to what he designated as 'Pre Act widows'. The foundation for this contention is the majority decision of this Court in 'AIR 1951 Orissa 378 (SB) (C)'. The Act came into force on 14-4-1937 and was amended by Act 11 of 1938 on 8-4-1938. The Amending Act (Act 11 of 1938) expressly says that it shall have retrospective effect as if it had come into force on 14-4-1937. By theAmending Act the word 'intestate' which occurred in Section 3(2) was omitted and the expression 'died intestate' was explained by a new section. If the parent Act is to be regarded as retrospective, as has been held by the learned Judges who constituted the majority, there was no need for the Legislature to enact that the amending Act would have retrospective effect only from 14-4-1937. If the parent Act is retrospective the Amending Act also would be equally retrospective and there would have been no need expressly to legislate so as to make it retrospective from a certain date. The learned editor of Mayne's Hindu Law (Edn. 10) is also of opinion that the parent Act has no retrospective operation.
14. But apart from this, there is the decision of the Federal Court which is decisive. The dictum of Varadachariar J. in 'Umayalachi's case (B)' that
'it is prima facie prospective and its proper construction and operation must be determined with reference to conditions and contigencies likely to arise after its commencement because these alone could presumably have been within its contemplation'
puts the matter beyond any controversy regarding the non-applicability of the Act to widows whose husbands died before the Act. My learned brother Narasimham J., sought to distinguish that case on the ground that
'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 coparcener before the commencement of the Act of 1937.'
With great respect I must express my dissent from this statement. Even an obiter dictum of the Federal Court is binding upon the High Court and when a Superior Court held that an Act is 'prima facie prospective' it is not open to subordinate Courts to canvass the import or implication of that dictum. The use of the word 'prima facie' would indicate that there is no possibility of an alternative construction being put on the Act, for it is on the face of it prospective. But it does not end there. The judgment of the Federal Court further says that
'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.'
These words constitute a definite and unequivocal pronouncement of the highest tribunal regarding the operation of the Act. As stated above Narasimham J. has further observed that
'this point was not specifically taken up before their Lordships of the Federal Court and it could not be taken up because the property had vested in a coparcener before the commencement of the Act of 1937.'
This reasoning appears to me to run in a vicious circle and the premises on which most of the argument in the judgment of Narasimham J. has proceeded appear to me to be erroneous.
The question which Narasimham J. posed for consideration by the Special Bench was: whether the benefits of Sub-section (2) of Section 3 of the Act are available to a Hindu woman who becomesa 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 a valid alienation. If the husband's interest had not been partitioned off or alienated, it passed by survivorship to the other co-parceners. An interest in property must vest in somebody and cannot remain suspended. An interest of a deceased coparcener, which exists but does not pass by survivorship to the surviving coparceners, is unknown to Hindu law. If the proposition advanced by Narasimham J. is correct, then Umayalachi should have been granted a decree for in that case the interest of her husband had not been partitioned nor had lapsed by survivorship. Nor can it be said to have 'vested' in Arunachalam, for there is no such thing as inheritance or vesting in a joint family. He was holding the joint family property by survivorship. The family had for the time being withered but was not dead. New members might be introduced into the family by birth or adoption. If, by the simple reason of the property having 'vested' in Arunachalam, the plaintiff had lost her right, it is strange that so much argument should have been wasted by so many eminent counsel to establish such an obvidus proposition. The Federal Court expressly held that the property that devolved upon Arunachalam as the sole surviving coparcener was not his separate property as 'the moment sons are born to him they will become coparceners'. This is also the view of the Judicial Committee taken in -- 'Anant Bhikkappa v. Shankar Ramchandra', AIR 1943 PC 196 (D) where their Lordships observed:
'This possibly challenges the character of a surviving coparcener's right as an absolute right, and creates qualifications which impair its completeness.'
The property that Arunachalam got on the death of his son as the 'sole surviving coparcener' was, therefore, not his absolute property and the right he had in it was not absolute in character, and it could not be said to have 'vested' in him.
15. Another proposition advanced by Narasimham J. is that the characteristic attribute of a coparcenary is that a coparcener has a mere 'privilege' to admit male issues only to the coparcenary and that the Act purports to deprive him of this privilege by admitting the widow of a 'deceased coparcener'. If a widow is 'admitted' to the coparcenary, the Act would have said so. On the other hand, the Act merely seeks to 'better' the rights of the widows by enabling them to succeed to their husbands' interests and enjoy the 'widow's estate'. The extent as well as the limit of her right are defined. A coparcenary is a corporate body and not a partnership. A coparcenary may exist without owning any property, and the right of a member springs on his birth. This right is not dependent upon the existing coparceners' 'admitting' him into the family. They have no right of refusal, any more than they can prevent him from being born. To characterise the right of a coparcener as a 'privilege' is to confuse it with that of a partner in a firm. If the Legislature had intended to introduce a change of such sweeping character one would expect clearer language in the enactment, before declaring a widow as a coparcener.
16. Ray, C.J. adopted a different line of reasoning and conceded that the husband's interest becomes extinguished and lapses to the body of coparceners in the same manner as it would, if the Act were not in force. But he has sought to introduce a distinction which he states thus:
'The number of persons for whose benefit the effect of the extinction will operate will include the widow. The interest thus grows in her and can be, not improperly, described as devolving on her by survivorship. Like all other survivorships she should acquire a right of claiming partition.'
This, if I may say so with respect, results in a paradox born of a platitude. A woman member of a corparcenary is not a 'coparcener'. Her right is limited to maintenance only, and she has no interest in the coparcenary property as such. To treat her, therefore, as a coparcener and to hold that she acquires an interest in the property which 'grows' (and presumably also liable to diminution) will altogether remove the difference that now exists between male coparceners and female members of a Hindu family. The learned Judge then concludes :
'In this view of the matter his interest remains undisposed of and what goes down from time to time by deaths or births is the right to represent him, which is not--in the strict sense of the term--the same as the right to property.'
But, then, what happens to the undisposed of interest of the deceased husband? The deceased husband's interest was the right to enjoy the property jointly with others and this interest lapsed by death. I cannot, therefore, subscribe to the view that 'his interest remains undisposed of, tO my mind there has been some confusion in the use of the word 'coparcener' as applied to a Hindu undivided family and as it is understood in the English law of tenures. The distinction between the two was pointed out by Lord Dunedin in -- 'Baijnath Prasad Singh v. Tej Bali Singh', AIR 1921 PC 62 (E) thus:
'When a member of a joint family dies his right accresces to the other members by survivorship. But if a coparcener dies, his or her right does not accresce to the other coparceners, but to his or her own heirs.'
The law of survivorship was laid down as early as in 'Naraganti Achamma v. Venkatachalapathy', 4 Mad 250 (F) in these terms: 'Where property is held in coparcenary by a joint Hindu family there are ordinarily three rights vested in the coparcenary; there is no right of survivorship, under the English law, but there is the 'jus accrescendi' in a joint tenancy. The blending of coparcenary and survivorship is a feature peculiar to the Hindu law of joint family and differs from the English law as well as the sense in which Colebrook used it with reference to both Dayabhaga and Mitakshara'. I can find no authority for the statement made by Ray C. J. to the effect that 'his interest remains undisposed of' when a Hindu dies leaving other coparceners.
17. Another observation made by the learned Chief Justice in 'AIR 1951 Orissa 378 (SB) (C)' is:
'Reduction by fluctuations is permissible but not enhancement because -- evidently, as the trend of authorities so far goes to establish,with which I respectfully agree -- she is not a coparcener in the full sense.'
This, again, if I may say so with respect, is an attractive but misleading innovation. Fluctuation of an interest by births or deaths is ona of the normal incidents of a Hindu coparcenary. I can find no authority for the proposition that the interest is liable to fluctuation by reduction) but not by enhancement. Either a member is a 'coparcener' or he is not. To say that a widow is a coparcener but 'not a coparcener in the full sense' may have the charm of novelty, but appears to be opposed to logic and commonsense. The learned Judge himself seems to have realised that this is an indefensible proposition but has justified it by saying: 'We shall have to make compromises or exceptions in order to meet the ends of justice'. It is not the function of a Judge to legislate and introduce exceptions or compromises into the plaintext of an enactment. The judicial function is limited to the interpretations of the law within the limits of recognised canons of interpretation.
18. After having given my anxious consideration to the judgments of the learned Judges who constituted the majority, I feel unable to subscribe either to their reasonings or to the conclusions arrived at by them. In my opinion, 'Radhi Bewa's case (C)' requires reconsideration as I am afraid it is bound to lead to unforeseen complications and throw this branch of the Hindu law into a welter of confusion.