1. Seth Dina Nath Goenka, the propositus, grandfather of plaintiff No. 1 in this case, died somewhere in or about the year 1907, leaving behind him, his widow, Smt. Sukh Devi, who is defendant No. 8 in this case, and Durga Prasad, defendant No. 1. He left considerable properties, both movable and immoveable, which were coparcenery properties, wherein his sons had acquired interest by birth. Son, Sat Narain died on March 13, 1966, leaving behind him his son Gopal Narain, plaintiff No. 1 and grandson Brji Narain, plaintiff No. 2 minor son of Gopal Narain, both forming one branch of the family. Son Durga Prasad is defendant No. 1, who along with his son Shri Narain, defendant No. 2, and grandsons, defendants Nos. 3, 4 and 5 from another branch, which for convenience of reference is described herein as 'defendants first party'. Son, Ganga Dhar had died earlier in 1942, leaving behind him his sons, Suraj Narain, defendant No. 6, and Rajinder Kumar who had also died in 1946, leaving his wido, Rama Bai, defendant No. 7, both defendants Nos. 6 and 7 are jointly referred to herein as 'defendants second party, being the third branch. Defendants Nos. 9 and 10 are sisters of plaintiff No. 1 being daughters of late Sat Narain and they have been described in the plaint and shall be described herein, as defendants fourth party. The properties continued to be joint family properties and the plaintiffs are in joint possession of the same along with other members of the joint family.
2. Defendant No. 1 is alleged to have been lately mismanaging the properties, which circumstance is said to have given rise to quarrels and disputes between the family members. The plaintiffs, thereforee, filed the present suit praying for a decree of partition of the properties mentioned in the first and second schedules attached to the plaint; and for separate possession of one-third share therein. They further stated in the plaint that defendant No. 8, the mother of defendant No. 1 is in law entitled to a share equal to that of a son. The share of the plaintiffs, as also of the defendants first party and defendants and second party accordingly would be 1/4th each; but as defendant No. 8 was stated to be not claiming any share in the properties, the share of plaintiffs was said to be 1/3rd in the whole of the property and defendants first party will have another 1/3rd share, while defendants second party will another 1/3rd share in the property.
3. Smt. Sukh Devi, defendant No. 8 in her written statement contested the averments made in the plaint and stated that it was incorrect that she did not claim any share in the joint Hindu family property. She was in law entitled to 1/4th share in the partition between the sons and she positively claimed her said share to be given to her at the time of partition. She denied that the plaintiffs were entitled to 1/3rd share in the joint family property as claimed by them. Defendant No. 6 in his written statement denied that the plaintiffs were entitled to 1/3rd share in the property. Defendants Nos. 1 to 5 (first party) in their written statements stated that they have no objection if they were given 1/3rd share in the property, to which they were entitled, the other 2/3rd share being that of plaintiffs and the other defendants jointly.
4. In their replication, the plaintiffs stated that the claim of defendant No. 8 to 1/4 the share in the joint family property was justified in law. They, thereforee, stated that the plaintiffs should be given 1/4th share, while defendants first party should likewise be given 1/4th share. Another 1/4 the share should go to defendants Nos. 6 and 7. Defendants Nos. 1 to 5 filed a rejoinder to the plaintiffs' replication wherein they stated that the plaintiff No. 1's grandmother, defendant No. 8, has no legal status and claim in the property. If at all she had any share the same should be claimed out of the share of the plaintiffs. Share of defendants Nos. 1 to 5 was claimed to be 1/3rd absolute, and the partition was according to them to be made in three equal shares. Defendant No. 8 was stated to be entitled to no share in the properties of the joint family as her husband had died in about 1907.
5. On August 29, 1969, the learned counsel for the parties should be put to trial on the following issues:-
'Whether defendant No. 8 is entitled to any share in the property? If so, how much?'
This issue was accordingly set down for trial as a preliminary issue.
6. Shri O. P. Gupta, the learned counsel for Smt. Sukh Devi, defendant No. 8, submitted that before the Hindu Women's Rights to Property Act, 1937, a widow mother could not compel a partition, so long as the sons remained joint. If a partition took place between the sons, she became entitled to a share equal to that of a son in the coparcenery property. He relied on paragraph 316 of Mulla's 'Principles of Hindu Law' (1966 edition) where the mother is stated to be entitled to a share equal to that of a son in the coparcenery property, if a partition took place between the sons. The value of any 'stridhan' received by the mother from her husband or father-in-law according to that authority is required to be deducted from her share. The learned counsel referred to the cases of Raoji Bhikaji Kondkar v. Anant Laxman Kondkar : AIR1918Bom175 and Ganesh Dutt Thakoor v. Jewach Thakoorain (1904) 2nd 31 Cal 262 where it was held that a mother's right to a share in the husband's estate on partition of the estate between the sons accrues only when a partition is actually made. This proposition was further reiterated and confirmed by the Privy Council in Pratapmull Aggarwala v. Dhanbati Bibi , where it was held that according to the Mitakshara law, the mother or the grandmother is entitled to a share when the sons divide the family estate among themselves; but she cannot be recognised as the owner of such share until the division is actually made, as she has no pre-existing right in the estate except a right of maintenance. The mother, it was held, does not become owner of the share allotted to her by a preliminary decree in a partition suit of her son, until the preliminary decree was carried out and actual division of the joint family was made. The widow mother of course could not compel a partition so long as the sons remained joint.
7. With the enforcement of the Hindu Women's Rights to Property Act (Act 18 of 1937), on the death intestate of a Hindu governed by Mitakshara School of Hindu Law, leaving separate property, his widow became entitled to the same share, in respect of which the husband died intestate, as a son. In case the deceased husband had at the time of his death an interest in the Hindu Joint Family Property, his widow acquired in the property the same interest as he himself had. The interest devolving on a Hindu Woman, was, of course, a limited interest, known as 'Hindu Woman's Estate'. She was given the same right of claiming partition as a male owner.
8. The Hindu Succession Act (Act 30 of 1956) repealed the said Act 18 of 1937. This Act principally is a mere law of inheritance containing rules of devolution of property on the death of a person and does not deal with partition or the rights of persons inter vivos except the right to make a will in respect of certain property or the determination of the nature of certain properties acquired by Hindu females. No change has been introduced in the rights of a mother to a share equal to that of a son in the coparcenery property, when actual partition takes place between the sons. According to the dictum laid down by the Privy Council in Partapmull's case (supra) the mother did not become the owner of the share allotted to her even by a preliminary decree until the said decree was carried out and actual division took place. Under the Hindu Succession Act, however, this interest, which was regarded as a limited interest, has been converted into an absolute estate and she has been held to acquire property even on passing of the preliminary decree. Mr. Justice Shah, speaking for the Supreme Court in R. B. S. S. Munnalal v. S. S. Rajkumar, : AIR1962SC1493 , observed:-
'By Section 14(1) the Legislature sought to convert the interest of a Hindu female which under the Sastric Hindu Law would have been regarded as a limited interest into an absolute interest and by the Explanationn thereto gave to the expression 'property' the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By Section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratap mull's case undoubtedly laid down that till actual division of the share declared in her favor by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full right of inheritance and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Women's Rights to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in 'severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratap mull's case, 63 Ind. App. 33 = Air 1936 Pc 20. Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts save as otherwise expressly provided in this Act,-
(a) Any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:
Manifestly, the Legislature intended to supersede the rules of Hindu Law on all matters in respect of which there was an express provision made in the Act.
9. The Hindu Succession Act, 1956, is, thus, considered to have improved the position of a Hindu female in respect of her property. The restricted nature of her interest has developed into an absolute estate. There is, thereforee, no scope for curtailing her rights merely by speculation.
10. Shri Bishamber Dayal, the learned counsel for defendants Nos. 1 to 5 (defendants first party) contended that the rule of Mitakshara Law, which prevailed prior to Hindu Women's Rights to Property Act, 1937, has been modified by the Hindu Succession Act, 1956, which has an overriding effect. The mother's share, which was a limited estate, was provided to her in lieu of her right to maintenance. She did not have any share in the family property as such. And now, that she is entitled to succeed to a share on the death of the husband, father and son, that rule of the mother's share on partition must be deemed to have been abrogated. The learned counsel relied on a decision of the Bombay High Court in Smt. Shriramabai v. Kalgonda Bhimgonda : AIR1964Bom263 . In that case, the last male holder died leaving behind him his widow, one son and three daughters. The widow mother then filed a suit for partition, claiming 1/3rd share as her own share and 1/5th share as one of the heirs of her deceased husband. The son contested the suit and contended that she had only 1/10th share. Under Section 6 of the Hindu Succession Act, the interest of the deceased was to devolved on his heirs. The question for consideration was the determination of the interest of the deceased. According to Explanationn (1) to Section 6 of the Hindu Succession Act, his share shall be deemed to be the share in the property that would have been allotted to him, if a partition had taken place immediately before his death. If the mother was also entitled to a share on partition before the death of her husband, the share of the deceased on partition then would have been 1/3rd. If, on other hand, the mother was not entitled to any share at the time or partition before her husband's death, the share of the husband would have been one half: the other half going to the son. The learned Judges who constituted the Bench of the Bombay High Court in that case observed that the mother was given a share, though a limited estate, because she was otherwise not entitled to succeed to her husband or father. She was only entitled to maintenance and the share was granted to her in lieu of maintenance. But, now that Hindu Succession Act, 1956 has brought about a change, which entitled the widow mother to succeed to a share on the death of the husband or father, the old rule of Hindu Law under which she was given a share at the time of actual partition amongst the sons, observed the Bench, should be deemed to have been abrogated. It was accordingly held in that case that 'the interest of a Hindu Mitakshara coparcener available for division under this section (Section 6(1) of the Hindu Succession Act) will be such share in the property as would be allotted to him if a partition of the property had taken place immediately before his death amongst the coparceners according to the rules of Hindu Law with the qualification that to the mother and maintenance and marriage expenses of the daughters must be treated as abrogated in view of Section 4, which gives the Act an overriding effect.' With great respect to the learned Judges, I feel constrained not to agree with this view.
11. The partition immediately before the death of the last male holder would have between him, his wife and his on. According to para 315 of Mulla's Principles of Hindu Law' (13th edition) if a partition takes place between her husband and his sons, the wife is entitled to receive a share equal to that of a son and to hold and enjoy that share separately, even from her husband. The overriding effect of the Hindu Succession Act, created by Section 4, is only in respect of such matters, 'for which provision is made in this Act'. There is no provision in the said Act, in respect of the rights or the share of the wife or the mother in the coparcenery property, at the time of partition. This being so, the question of the said Act overriding any text, rule or interpretation of Hindu Law in force immediately before the commencement of the Act in respect of such matter does not arise.
12. The right of inheritance to the estate of the father or husband or a son has been conferred on Hindu females under the Hindu Succession Act. But nothing has been said in respect of their right to a share on partition. This right has not been done away with under this Act or under any other law. The legislature has not made any provision on the subject of the share of a wife or a mother on partition. The courts, I am afraid, are not privileged to introduce into the law something about a subject in respect of which the legislature itself preferred not to interfere. The concept of 'Hindu Woman's Estate' or the 'Limited Estate' in the Hindu Law has been abrogated under the Hindu Succession Act, 1956, which has given to Hindu females full rights of inheritance completely doing away with the limitations on their power of disposition. A Hindu female has been made a full owner of the property of which before the enactment of this legislation, she was merely a limited owner. A significant change in the statutes of females was brought about by the Hindu Women's Right to Property Act, 1937 which gave to the Hindu widow the right to claim a partition, although the ownership of her share was still of a restricted nature. The attempt throughout has, thus, been to improve the position and the status of Hindu females and to bring them as far as possible, at par with the males in the matters relating to the acquisition and holding of property. The contentions of Shri Bishamber Dayal to the contrary thereforee have no basis and cannot be accepted.
13. In Saraswathi Ammal v. Anantha Shenai, Air 1966 Ker 66, a Bench of the Kerala High Court was considering the case, where the propositus, husband of the appellant died in 1943. In the partition suit, a preliminary decree was passed on January 2, 1958 and the trial court in its judgment said that the appellant widow and the unmarried daughters were to be maintained out of the family properties. Provision had to be made for their maintenance and for the marriage expenses of the daughters. Counsel for the parties agreed that share equal to that of a son may be set apart for the widow for her maintenance. The share was to revert to the plaintiff-son and other sons on the death of the widow. The appellant widow then challenged the imposition of the condition. It was held by the Bench that according to the Mitakshara the widow was entitled to a share of the joint family properties at a partition thereof among the sons, equal to that of a son or a mother as the case may be. It was, thereforee, not correct to say that it was by a special concession of the plaintiffs that the appellant became entitled to a share in the suit properties. The concession was only to give effect to the real law on the matter, which was no concession at all, but the fulfillment of a legal obligation on their part. Under the Hindu Law the normal right of a Hindu widow, it was observed, was to maintenance out of the income of the whole of the joint family estate; but when the joint family estate was divided she was entitled to a share of the estate in lieu of her right to maintenance. Her right to the share arose on partition among the sons and then only. As under the preliminary decree in that case the sons and the grandsons had become separated individuals, the appellant was held to have become entitled to a share in the suit properties. The right of the mother to a share on a partition was not only recognised in that case, but the share allotted to her was held to be her absolute property. The imposition of the condition of reverter was held to be against the law and was accordingly discharged.
14. It was urged by Shri Bishamber Dayal that the right of the mother to maintenance has been recognised and codified under the Hindu Adoptions and Maintenance Act, 1956. This, according to the learned counsel, was, indicative of the fact that she was not intended to be given a share at partition of the joint family property. But the minor children do not lose their right to a share in the property merely because they are also entitled to maintenance under the said Act. Even the rights of the adult sons are not affected in any way merely because they are entitled to maintenance even out of the joint family property. The mother cannot be treated differently and the argument of the learned counsel is without any substance.
15. It is manifest, thus, that at the time when the partition takes place between the sons, the mother is entitled to a share equal to that of a son in the coparcenary property. If, however, the mother has received 'stridhan' from her husband, or father-in-law, its valued may be deducted from her share. Defendant No. 8 in the instant case, thereforee, is entitled to 1/4th share in the property subject to deduction from her share of the value of any property she may have already received from her husband or father-in-law. The preliminary issue is decided accordingly.
16. For the trial of the case on merits, the parties are directed to appear before the learned Judge sitting on the original side on April 17, 1970.
17. Order accordingly.