S.B. Majmudar, J.
1. This second appeal challenges a preliminary decree for redemption as passed by the learned Civil Judge J.D. Bhuj in favour of the respondents-plaintiffs and as confirmed by the learned District Judge, Kutch at Bhuj, in appeal No. 139 of 1973.
2. The controversy between the parties lies in a very narrow compass and that is, as to whether the respondent plaintiffs are entitled to full redemption of the suit mortgage or whether the decree for redemption has to be confined only to the alleged limited share of the original plaintiff Rajgor Bhavanji Vishanji in the equity of redemption and whether the defendant-appellant is entitled to take as full owner alleged 1/2 share in the suit property on account of his having purchased the alleged right of one Bai Jashubai in the suit property.
3. The facts leading to the present litigation may now be stated in brief.
4. On Rajgor Bhavanji Vishanji had acquired the suit immovable property which is situated in Juna Hathikhana in Bhuj-Kutch at a partition with his brother. The said property was mortgaged by him on 24-2-35 to one Kunverji Kalyanji the deceased father of the present appellant-original defendant for a consideration of 3500 Kories. It was a Vitantar or a usufructuary mortgage. A registered document of even date was executed for the purpose. The possession of the suit property was also handed over to the deceased father of the appellant on that very day. The afore said Bhavanji, original mortgagor, had two sons--one was Veerji and an other Govindji. Said Govindji was staying at Africa since many years and had died there in St. Y. 1999 i.e. 1943 A.D. leaving his widow Bai Hirabai. Bhavanji the original mortgagor died on 4-1-1950. He left behind him his widow and the sole surviving son Veerji and his predeceased son Govindji's widow Hirabai.
5. Veerji Bhavanji filed Regular Civil Suit No. 147 of 1971 in the Court of the Civil Judge J.D., Bhuj, for redemption of the suit usufructuary mortgage on the ground that on the death of his brother Govindji his widow had no interest left in the suit property and the same thereafter belonged jointly to Bhavanji and Virji and on the death of Bhavanji, Virjee was entitled to succeed to it as its sole owner. He filed the aforesaid suit against the present appellant who was the son of the original mortgage in possession i.e., Kunverji Kalyanji.
6. Amongst others the main defence of the appellant-defendant was that he owned 1/2 interest in the suit property as purchased from Hirabai widow of the predeceased brother of the plaintiff and who was also interested in the suit properties that he had purchased right, title and interest of Hirabai in the suit property by registered document, Ex. 51 dated 10-8-1970 and consequently the plaintiff was not entitled to full decree of redemption in his favour. The contention of the appellant on this score was that Hirabai had 1/2 interest to the suit property, being the widow of the predeceased brother and the defendant had become owner of interest of Hirabai pursuant to the aforesaid document. Consequently, the equity of redemption concerning 1/2 property had got extinguished when it merged with the mortgagee's interest in the suit property. Consequently the plaintiff Virji was entitled to equity of redemption only of 1/2 share of the suit property and nothing more.
7. The learned trial Judge framed issue at Ex. 19 and after recording evidence came to the conclusion that Hirabai had no right, title and interest in the suit property and consequently she had nothing to convey to the appellant under the document Ex. 51 so far as the suit property was concerned and on the aforesaid finding, the learned trial Judge came to the conclusion that the plaintiff was entitled to redemption of the entire suit property and accordingly preliminary decree was passed in favour of the plaintiff. It may be said that the original plaintiff died pending the suit and his heirs present respondents were brought on record and the preliminary decree came to be passed in favour of the heirs of the plaintiff-respondents. The appellant carried the matter in appeal to the District Court, Kutch at Bhuj. Before the appellate Judge the solitary contention which was raised was as to whether Hirabai had a right to transfer 1/2 property to the appellant and the plaintiff had a right to redemption decree for the whole of the property. The aforesaid contention of the appellant was negatived by the learned District Judge who took the view agreeing with the trial Court that Hirabai had no right, title and interest in the suit property and consequently the document Ex. 51 by which she purported to convey her interest in the suit property to the defendant was an exercise in futility. Consequently, the appeal was dismissed by the District Court. As stated above, the appellant has come to this Court by way of present second appeal, being aggrieved by the decision of both the Courts below on the main contention.
8. Mr. Y.S. Mankad, learned Advocate appearing for the appellant defendant raised the same contention once again before this Court which was unsuccessfully raised by the appellant before the lower appellant Court. Mr. Mankad contended that the original mortgagor Bhavanji died on 4-1-50 and when he died his surviving son Virji and predeceased son Govindji's widow Hirabai succeeded to the property left by him including the suit property and consequently it cannot be said that Hirabai had no right, title and interest in the suit property. Mr. Mankad further submitted that when Hirabai transferred her right, title and interest to the mortgagee in possession, the mortgagee in possession stepped in the shoes of Hirabai and obtained whatever interest she had in the suit property. In the submission of Mr. Mankad, Hirabai had 1/2 interest in the suit property and that interest passed to the mortgagee in possession by virtue of document Ex. 51 and consequently the plaintiff was not entitled to redemption of the entire suit mortgage. The other half interest of Hirabai got extinguished and merged in the mortgagee's interest i.e. of appellant Kunverji who became the owner of 1/2 of the suit property.
9. In order to appreciate the aforesaid submission of Mr. Mankad it is necessary to keep in view certain chronological events which had happened, as revealed on the record of the case. As stated above, the original owner and mortgagor was Rajgor Bhavanji and he had got the suit property in partition with his brother and hence it was an ancestral property in his hands. Having so obtained the property in partition he mortgaged it with possession in favour of the appellant's father by usufructuary mortgage dated 24-2-35 and since that date onwards the mortgaged suit property was in actual possession of the appellant's father and after his death with the appellant. The second important event is that Bhavanji's one son died in April 1943 and he left behind him his widow Hirabai and thereafter came the death of original mortgagor Bhavanji. At the time of his death he left behind him his own widow, second son Virji and widow of his predeceased son Govindji. The short question is as to what was the interest which Hirabai had in the suit property firstly at the time when her husband died in 1943 and secondly when her father-in-law the mortgagor died in 1950. As stated above, the suit property was joint family property of the original mortgagor Bhavanji and his brother. In this ancestral property of Bhavanji, Govindji and Virji had coparcenary interest. Out of his two sons, Govindji died in 1943. In the trial Court there was controversy as to whether Govindji had died in jointness with his father and Virji or he had separated from the joint family before he died in Africa. The learned trial Judge found that the plaintiff has failed to prove that Govindji had separated from his father before his death. That finding was not seriously challenged before the appellate Court. The result is that it must be assumed for the sake of the present discussion that Govindji died in jointness with his father and brother in 1943 and at that time he had undivided coparcenary interest in the suit property. The question is as to what happened to that interest of Govindji in the suit property on his death. It is an admitted position on the record that he had left behind him his widow as his sole heir. The short question is whether Hirabai acquired any interest in the suit property when her husband died in jointness with his father and brother. As stated above, Govindji had undivided coparcenary interest in the suit property at the time of his death. It is axiomatic to say that when a Hindu male dies in jointness with other male leaving behind him undivided coparcenary interest it passes by survivorship and cot by succession subject of course to statutory provisions like provision of Section 6 of the Hindu Succession Act, 1956 or the provision of Hindu Womens' Right to Property Act, 18 of 1937. In the present case, it must be noted that at the time when Goviadji died in 1943 there was no question of Hindu Succession Act, 1956 being in operation and it was not even in any distant horizon but Mr. Mankad contends that at least the provisions of Hindu Womens' Right to Property Act, 1937 can be pressed in service for showing that Hirabai in 1943 had some interest in the suit property. It is difficult to accept the aforesaid submission of Mr. Mankad. It has been held by the appellate Judge that in the Ex-State of Kutch there was no legislation available which was parallel to Hindu Women's Right to Property Act of 1937 which applied to the British territories in those days. The Hindu Womens' Right to Property Act, 1937 was made applicable to Ex-Kutch State territory in 1949 by application of Laws order of that year. Mr. Mankad submitted that even if the provisions of Hindu Womens' Right to Property Act may not be applicable in 1944 when Govindji died, they were applicable when the original mortgagor died in 1950. Mr. Mankad, therefore, submitted that even under the provisions of the Hindu Womens' Right to Property Act, Hirabai, widow of the predeceased son of Bhavanji acquired interest in the suit property at least in 1950 when she survived the original mortgagor Bhavanji. As stated above, the first question to be answered is as to what happened to Govindji's interest in 1943 when Goviadji dies. The answer is that Govindji's undivided coparcenery interest in the suit property went by survivorship, i.e. to his father and brother Veerji and to the exclusions of his widow. Under the law of the land where the suit property was situated Hirabai got no interest in the suit property save and except the general right of being maintained out of the property of her deceased husband But save and except the right to be maintained out of her husband's property, she has no other interest in it. The suit property went by survivorship to Bhavanji and Virji who each got 1/2 interest therein. That was the state of ownership till we come to 1950 when Bhavanji died. Mr. Mankad contends that in 1950 Hirabai walked into the ownership of the suit property at least partially as she was an heir to the estate of Bhavanji. Hence the question which now survives for consideration is as to whether Bhavanji's 1/2 interest in the suit property was available to Hirabai either wholly or in part so that she may be equipped with a vestige of title at least when the original mortgagor died. Mr. Mankad's contention is that under the Hindu Womens' Right to Property Act, 1937 which had started operating in Kutch after 1P49, the predeceased son's widow Hirabai was entitled to a share in her father-in-law's property. In order to answer this question it is necessary to have a look at the relevant provision of the aforesaid Act. The preamble of the Act shows that whereas it is expedient to amend the Hindu Law to give better right to women in respect to property, this Act was enacted, namely, The Hindu Womens' Right to Property Act, 1937 and it extended to the whole of India except Part B States. It be noted that Kutch State was a Part C State on the coming into operation of the Constitution. Section 2 of the said Act provides that notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate. Consequently Section 3 has an overriding effect over any rule of Hindu Law or custom which may be prevailing prior to the operation of the said provision. Section 3 reads as under:
3(1) when a Hindu governed by the Dayabhaga school of Hindu Law dies intestate having 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 a widow of a predeceased son shall inherit in like manner as a son if there is no 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 a Dayabhaga 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.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Womens' 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 on a single heir or to any property to which the Indian Succession Act, 1925 applies.
A mere look at the said provisions shows that the section has treated the interest of a Hindu who died intestate, in two separate categories. In the first category is provided a situation in which the Hindu died intestate leaving separate property. While in another category is provided a situation in which a Hindu died intestate leaving behind him interest in joint family property because Section 3(1) deals with contingencies when the male Hindu dies intestate leaving behind him any separate property and when he is governed by any other school of Law except Dayabhaga school of Hindu Law. In such a situation, the widow or if there is more than one widows, all his widows together, subject to the provisions of Section (3) are entitled to property in respect of which he dies intestate to the same share as a son. Section 3(1) also postulates right of the widow of the predeceased son 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 no surviving son or a son's son of such predeceased son. Thus if a Hindu dies intestate leaving behind him separate property, governed by the provisions of a Mitakshara School of Hindu Law, in his separate property, his son's widow is also given a right of inheritance in the like manner as his own son. But so far as the other category of case is concerned, namely, if a Hindu governed by Mitakshara School of Hindu Law dies intestate leaving behind him interest in the 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. But in such a case there is no provision for predeceased son's widow to have any interest in the joint family property. Under the scheme of Section 3 the predeceased son's widow can inherit interest in her intestate father-in-law's property provided he dies intestate leaving separate property. But so far as the joint family property is concerned, the widow of the predeceased son has no interest in her father-in-law's joint family property even if the father-in-law expired leaving his predeceased son's widow. Sub-section (3) provided that nature of interest under the provisions of the section will be a limited interest known as Hindu Women's Estate provided however that she shall have the same right of claiming partition as a male owner. If the suit property was separate property of original mortgagor, Mr. Mankad would have been justified in urging that under the provisions of Section 3(1) proviso, the predeceased son's widow Hirabai would have got the same interest which her husband would have got if he had inherited the original mortgagor's property. Unfortunately for the appellant the suit property does not belong to that class. On the contrary, as the finding has been reached by the trial Court and not seriously challenged before the appellate Court, the suit property was joint family property of Bhavanji with his son and he had coparcenary interest so far as such type of property is concerned. Even though he had died intestate leaving 1/2 interest in the suit property it went to the surviving coparcener, Hirabai had no right, title, interest whatever in the suit property in view of the specific provision in Section 3(2) of the Hindu Women's Right to Property Act, extracted above. Consequently on the death of Bhavanji the joint family coparcenary interest of Bhavanji would enure for the benefit of his own widow and not even partly for the benefit of his predeceased son's widow so far as the joint family property is concerned. In that view of the matter it must be held that even in 1950 when Bhavanji died, his predeceased son's widow Hirabai could claim no right title, interest therein by virtue of the provisions of the Act which had started operating in Kutch after 1949. Thus the aforesaid Act cannot be pressed in aid by Mr. Mankad for culling out even a limited interest of Hirabai in the suit property in 1950. Once it is held that Hirabai had no limited interest in the suit property in 1950, in view of the specific provision of Section 3(2) of the Act, Section 3(3) would also be out of picture. There is no question of styling this interest as widow's interest. In fact she had no interest whatever in the suit property either in 1943 or in 1950. Consequently she acquired no widow's interest which can subsequently mature into full ownership in her favour. Mr. Mankad had to take the logic step of contending that Hirabai obtained widow's interest in the suit property in 1950 when her father-in-law died and it is that limited interest which matured in full ownership as she was possessed of widow's interest in the suit property, when the Hindu Succession Act of 1956 came into force, and because her interest matured into full ownership, it is that full ownership which passed by the registered document in favour of the defendants. The difficulty for the appellant is that even the first premise is missing in the present case. Hirabai had no widow's interest in the suit property in 1943 or in 1950 as discussed by me earlier. As she had no widow's interest in 1950 there was no limited interest possessed by her in the suit property in 1956 over which Section 14(1) of the Hindu Succession Act, 1956 could operate to make it full interest. As held by me above she remained a total stranger to the suit property both in 1943 and in 1950. Consequently in 1956 she could not be possessed of any interest in the suit property which could be enlarged into full ownership. Thus Section 14(1) of Hindu Succession Act cannot be effectively pressed in service by Mr. Mankad to clothe Bai Hirabai with 1/2 interest in the suit property as complete owner which could have been given by her to the defendant by Ex. 51. Mr. Mankad's submission was that succession to the suit property opened when Bhavanji died and not when Govindji died so far as Hirabai's interest in the suit property is concerned, it is difficult to accept this submission of Mr. Mankad. It must be recalled that Hirabai was claiming through Govindji. Govindji had undivided interest in the suit property. He died in 1943. Only at that time the question arose as to what happened to Govindji's interest. It is clear that the undivided coparcenery interest of Govindji went to Bhavanji and Virji by survivorship. Hirabai had no statutory right to get any limited interest in the suit property. Consequently, it cannot be said the succession opened in 1950 when Bhavanji died and not in 1943. If at all Hirabai can claim her share in Bhavanji's property by virtue of provision of Section 3(1) of the Hindu Womens' Right to Property Act which had applied in the mean-time prior to Bhavanji's death. Even that provision would not avail Hirabai as the property was joint family property and was not his self acquired or separate property. Consequently Hirabai was left high and dry so far as suit property was concerned. Mr. Mankad further submitted that Hirabai had legal necessity to transfer her right, title and interest in favour of the appellant by document Ex. 51. Whatever may be the necessity which prompted Hirabai to enter into the transaction as reflected by Ex. 51, the fact remains that she had no existing interest which she could effectively transfer to others. It was an exercise in futility. She was a total stranger to the suit property and she purported to transfer her alleged right, title and interest in favour of the appellant. In fact she transferred nothing in favour of the appellant by the said document and the result was that the appellant earned nothing by the said document. The net result was that the appellant stood to lose the consideration of the said document. Mr. Mankad then submitted that below Ex. 51 are put endorsements by the original plaintiff Rajgor Bhavanji Vishanji who naturally can be said to have recognised the said transaction. It is difficult to appreciate legal efficacy of this contention. It is true that the original plaintiff Rajgor Vishanji had put his signature on the said document. That only shows that he was attesting the document by which the original mortgagee purchased Bai Hirabai's so called right, title and interest in the suit property. But that would not affect the legal position that the transferor could transfer only that interest which was legally possessed by her in the suit property. If she had no interest the transfer would become otiose. Merely because the original plaintiff signed as an attesting witness, the said fact led neither here nor there. It is further interesting to note that the signature of the original plaintiff is by way of one of the attesting witnesses and the attesting witness is not supposed to know the contents of the document. Hence the said submission can be of no real a ssistance to appellant. Mr. Mankad invited my attention to the decision of the Supreme Court reported in Bai Vajia v. Thakorebhai : 3SCR291 , and submitted that the widow's right to maintenance, though not in indefeasible right is undoubtedly a 'pre-existing' right. It is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged on any immovable property. In the aforesaid case the Supreme Court was concerned with the case in which certain immovable property were allotted to Vajia in lieu of her maintenance and the question was as to whether the compromise decree which recorded this arrangement in favour of Vajia can be said to be conferring right to remain in possession of these properties only by virtue of the document for the first time or whether the said document was executed in her favour in recognition of her pre-existing right of maintenance from these properties. The Supreme Court in the light of facts before it held that the provisions of Section 14(1) of the Hindu Succession Act applied and not provisions of Section 14(2) thereof. While deciding as above, the Supreme Court, had made the following pertinent observations:
The widow's right to maintenance, though not an indefeasible right to property, is undoubtedly a 'pre-existing' right. It is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged. It cannot be said that where as property is given to a widow in lieu of maintenance, it is given to her for the first time and not in lieu of pre-existing right. The claim to maintenance, as also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all.
While analysing Section 14(1) and Section 14(2) of the Hindu Succession Act, the Supreme Court observed as under:
A plain reading of Sub-section (1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub-section. Limited ownership in the concerned female is thus a sine qua non for the applicability of Sub-section (1) of Section 14 of the Act.
Ownership in the fullest sense is a sum total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less. When a widow holds the property for the enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others. Such a relationship to property falls squarely within the meaning of the expression 'limited owner' as used in Sub-section (1) of Section 14 of the Act.
A combined reading of the two Sub-sections and the Explanation leaves no doubt that Sub-section (2) does not operate to take the property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the preview of Sub-section (1).
It is difficult to see how the aforesaid decision can be of any assistance to Mr. Mankad for the appellant. In the present case, it is no doubt true that Hirabai was entitled to be maintained out of the property of her deceased husband, whether self-acquired or his joint family property but her right to be maintained out of her husband's property was not crystalised under any arrangement in her favour by way of any charge on any property. It is nobody's case that the suit property or part of it was allotted to her in lieu of her maintenance. It is true that the right to be maintained out of her husband's property was with widow Hirabai that right remained in the realm of jus ad rent and did not culminate into a charge as explained by the Supreme Court in the aforesaid judgment in the case of Vajia, The Supreme Court in the aforesaid decision on this aspect has made following pertinent observations:
It is, therefore, clear that under the Sastric Hindu Law, a widow has a right to be maintained out of joint family property and this right would rippen into a charge if the widow takes the necessary steps for her maintenance ascertained and specifically charged in joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course a jus in rem, since it does not give her any interest in the joint family property but it is certainly jus ad rem i.e. a right against the family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be a grant for the first time without any pre-existing right in the widow. The widow would be getting the property in virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right and not making a great of the property to her for the first time without any antecedent right or title.
In the present case it is clear that the suit property was put in possession of the mortgagee by way of usufructuary mortgage years back in 1935 and if remained so all throughout till to-day. At the time when her husband died, Hirabai was never possessed of any part of the suit property. It is nobody's case that Hirabai was allotted either the whole or any part of the suit property. No arrangement had taken place in her favour nor was she allotted any property in lieu of maintenance. Consequently, there was no question of Hirabai acquiring any interest in the suit property, her maintenance right being a pre-existing right notwithstanding. Consequently, there was no occasion for the provision of Section 14(1) to operate in her favour in 1956 as she was not possessed of the suit property either wholly or in part in lieu of her right of maintenance, The suit property was never charged with any obligation in her favour. Consequently the very sine qua non the operation of Section 14(1) as laid down by the aforesaid decision of the Supreme Court is absent in the present case. Hence there is no question of any interaction of Sections 14(1) and 14(2) of Hindu Succession Act, 1956 so far as the facts of the present case are concerned. The aforesaid discussion leaves no room for doubt that that Hirabai was a total stranger to the suit property both at the time when her husband died and also at the time when her father-in-law died. Therefore, she had no interest in the suit property. She was not an allottee or a charge holder in the suit property either in whole or in part and the whole property remained in possession of the mortgagee from 1935 onwards. Consequently in 1956 there was no interest therein operating in favour of Hirabai.
10. The result was that when she chose to transfer her so called right title and interest in favour of the appellant-defendant by Ex. 51, she in fact transferred nothing and the transferee accordingly got nothing out of the said transaction.
11. Thus the conclusion is inevitable that Hirabai had no interest whatever in the suit property. Consequently, the original plaintiff Virji remained in possession of the full equity of redemption in the suit property and no portion thereof was available to Hirabai or for that matter to the purported transferee for whom there never arose an occasion of merger of the smaller interest into a larger one, once this conclusion is reached, the result is obvious that no fault can be found with the preliminary decree as passed by the learned trial Judge and as confirmed by the learned appellate Judge.
In the result this appeal is liable to fail and is accordingly dismissed with no order as to costs as no one appears for respondents.