1. This case has been placed before us as the result of a reference by a learned single Judge as it involves the determination of an interesting, question of law relating to the right of a widow in a joint Hindu family, her husband having died before the Jaipur Hindu Women's Rights to Property Act, 1947 (No. 38 of 1947), which was the counter-part of the Indian Hindu Women's Rights to Property Act, 1937 (No. XVIII of 1937), had come into force.
2. The facts relating to this appeal may be conveniently stated with reference to the following pedigree table:
(died somewhere near 1926 A. D.)
Widow Mst. Dakhli (Deft.2)
| | |
Gordhan Kishenlal Gulabchand
(died without | |
leaving any Widow Mst. Widow Mst.
Widow or issue) Mohari Chukli
It is admitted that Kishanlal, husband of the plaintiff Mst. Mohari, died some time in 1945 A.D. leaving behind him his widow and his brother Gulabchand and his mother Mst. Dakhli. It is also admitted that Gulabchand died in 1951 A. D. On the latter's death, Mst. Mohari brought the present suit for possession of her husband's one-third share in the joint family property by partition. It is not disputed before us that Girdharilal, Kishenlal and Gulabchand were members of a joint Hindu family. The property sought to be partitioned is a 'Guwadi' situate in the town of Sri Madhopur, which belonged to the former State of Jaipur, until that State became part of the integrated State of Rajasthan, It may be mentioned here that the Jaipur Hindu Women's Rights to Property Act, 1947, (No. 38 of 1947) (hereinafter referred to as the Jaipur Act of 1947) came into force in that State for the first time on 24-9-1947. The contention before the learned single Judge was that even though the aforesaid Act came into force in 1947) after the death of her husband Kishenlal, Mst. Mohari the plaintiff was entitled to the benefit of it, and, therefore, she was entitled to partition of her husband's share in the joint family property.
3. The suit was resisted by Mst. Dakhali, widow of Girdharilal. Mst. Chukli, widow of Gulabchand allowed it to proceed ex parte. The defence of Mst. Dakhli was that the suit propertywas the self-acquired, exclusive property of her husband, and, therefore, she alone was entitled to it. But this hardly matters inasmuch as on the death of her husband Girdharilal, his sons became entitled to inherit it in law to the exclusion of the former's widow in the absence of any such law as the Hindu Women's Rights to Property Act which admittedly was not in force at that time. Mst. Dakhali also pleaded that the plaintiff wag an unchaste widow, but this plea has also been rejected by both courts below and in our opinion lightly. The decision of the case, therefore, mainly turns on the legal question whether Mst. Moliari as a Hindu widow could or could not be held entitled to the benefit of the Jaipur Act of 1947, her husband having died in 1945 before that Act came into force. This question has been decided against the plaintiff and it was on this ground that the trial court dismissed her suit, and the dismissal was maintained by the learned District Judge. The plaintiff then came in appeal to this Court, and this appeal was in the first instance laid before a learned single Judge who has referred it to this Court.
4. The question which emerges for consideration from the facts and circumstances mentioned above may be formulated as follows:
'Whether Mst. Mohari the plaintiff after her husband Kishenlal's death acquired any right or interest in the joint family property which admittedly belonged to her husband and his brother Gulabchand under the Jaipur Act of 1947 notwithstanding the circumstance that her husband had died in 1945 before the said Act came into force.'
5. Now, the Jaipur Act of 1947 is an exact copy of the Hindu Women's Rights to Property Act (No. XVIII) of 1937 (hereinafter referred to as the Indian Act of 1937) as amended by Act No. 11 of 1938. There can be no doubt that under the Mitakshara law which applied to the parties prior to the Act, the widow of a person governed by that school of Hindu law would have only a right of maintenance in respect of the coparcenary property in which her husband had an interest. The Jaipur Act of 1947 as the Indian Act of 1937 was enacted to give better rights to women in respect of property as the preamble of these Acts says. The position of a Hindu widow, with whom alone we are concerned in the present case, was considerably ameliorated by virtue of the new legislation. Section 3(2) of these Acts reads as follows:
'When a Hindu governed by any school of Hindu law other than the 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.'
Sub-section (3) then is in these terms:
'Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.'
Then follows Sub-section (4) which has no relevance for our present purposes. The next important section is Section 4 which provides 'nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act. The last section is Section 5 which reads as follows:
'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.'
These are all the important provisions of law which have relevance before us.
6. It seems to us that on a plain reading of the provisions of the Jaipur Act of 1947 as well as the Indian Act of 1937, it was not intended by the Legislature to give them a retrospective operation. Section 4 is a clear indication in that connection. Apart from that, if there is one principle relating to construction of statutes which is more well established than any other, it is this that an enactment conferring substantive rights cannot be given a retrospective operation unless the Legislature has made an explicit and express provision to that effect therein or such a consequence inevitably follows by necessary intendment.
Along with this has to be remembered tho principle which is equally well established that the devolution of property on the death of its last holder must take place at once in some person entitled thereto and that it cannot remain in a state of suspension. It must follow as a corollary from this that such devolution is bound to take place simultaneously with the death of the person who last held or was entitled to the property. The combined operation of the aforesaid two principles clearly leads us to the further conclusion that the right of a widow as regards the property of a joint family of which her husband was a member cannot but be governed by the law which was in force at the time of her husband's death, and not the law which may have come into force later.
It is not disputed before us, as indeed it is indisputable, that at the time Kishenlal, husband of Mst. Mohari, died, the Jaipur Act of 1947 had not come into operation. That being so, the rights of Mt. Mohari in the joint family property would properly fall to be governed by the law which was in force at that point of time. There is no question that according to the law which was in operation at that time, the rights of her husband Kishenlal in the joint family property would go by survivorship to his brother Gulabchand and she herself could not have got into any such right. We also desire to point out that once the property solvent by the principle of survivorship to Kishenlal's brother, we can see nothing in the Jaipur Act of 1947 (or the Indian Act of 1937) from which we would be justified in coming to the conclusion that such a right could be divested once it had vested in another member of the coparcenary.
If this is the correct conclusion to come to on a plain reading of the provisions of the Act in question, it clearly follows that Mst. Mohari the plaintiff did not acquire any right in the joint family property which at one time had belonged to her husband jointly with others and that the same went by survivorship to the surviving brother Gulabchand, and, therefore, she cannot be held entitled to obtain any share in that property by partition on the ground that her husband had a right thereto in his life-time, and, therefore that she would be entitled to the interest of her husband by virtue of the Jaipur Act of 1947.
7. We have now to see whether the conclusion at which we have arrived above is in any way affected by judicial decisions. The one case on which learned counsel for the plaintiff placed very great reliance before the learned single Judge was a decision of the Orissa High Court in Radhi Bewa v. Bhagwan Sahu, AIR 1951 Orissa 378 (SR). This decision was given by a majority of two to one. The majority decision was that there was nothing in Sub-section (2) of Section 3 to indicate that the death of the person referred to therein must have taken place prior to the commencement of the Act and that all that it says is that when a Hindu governed by the Mitakshara school of Hindu law dies having at the time of his death an interest ina Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3) have the same interest in the family property as he himself had.
It was further held that even on a fair construction of Sub-section (2) of Section 3 it could not be said that there was any indication therein barring its application to the widows of those Hindus who had died before the commencement of the Act, and, therefore, there was no reason why the benefit of that section be denied to those women who became widows prior to the commencement of the Act. It was contended before the learned Judges that Section 4 read with Section 5 clearly indicated that the whole of Section 3 including Sub-section (2) could not apply to the property of a Hindu who had died before the commencement of the Act.
The majority decision repelled this contention by saying that Section 4 referred to the property of a Hindu dying intestate and so did Sub-section (1) of Section 3 whereas Sub-section (2) made no relerence to this qualification. The learned Judges further observed in this connection that it was hardly appropriate to say that a Hindu governed by the Mitakshara law having an interest in the joint family property could be said to die intestate in respect of his interest because he has right to make a testamentary disposition with respect to it, and, therefore, that expression was omitted in Sub-section (2) of Section 3 and was at the same time retained in Section 4, and, therefore, it necessarily followed that Section 4 could not apply to those Hindus who were referred to in Sub-section (2) of Section 3.
The learned Judges were obviously greatly impressed by the factor that the Indian Act of 1937 was a remedial Act enacted with a view to better the condition of certain classes of women with respect to their rights of succession etc., and therefore, they went to the length of holding that Sub-section (2) of Section 3 embraced within its scope the women who became widows not only after the commencement of the Act but also those who became widows before the commencement of the Act, subject to a rider which they felt compelled to impose on the proposition which they laid down above to the effect that that was the correct principle to apply 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 other individual.
The third learned Judge Jagannadhadas J., disagreed with this view and he held that the Act could not be given a retrospective operation and applied only to post-Act widows. It is curious that although there were subsequent decisions of the same High Court which shook the authority of the aforesaid decision and later completely overruled it, they were not brought to the notice of the learned single Judge.
8. In Nanda Kishore v. Sukti Dibya, AIR 1953 Orissa 240, Panigrahi J. threw a very serious doubt on the correctness of the majority decision in Radhi Bewa's case, AIR 1951 Orissa 378 (SB) and strongly expressed himself against the reasoning or the conclusion arrived at therein and suggested that that case required reconsideration.
9. The same matter came up for consideration before a Full Bench in Moni Dei v. Hadibandhu, (S) ATR 1955 Orissa 73, which by a unanimous decision overruled the view taken in Radhi Bewa's case, AIR 1951 Orissa 378 (SB). It was held that the provision of Section 3(2) of the Indian Act of 1937 did not have retrospective effect so as to apply to the case of a widow whose husband had died prior to the date of commencement of the Act. With respect, we are in entire concurrence withthis view, as it fully accords with the view which we have propounded above on a plain and natural interpretation of the language of the various sections.
We may also point out that the view takea by the majority in Radhi Bewa's case, AIR 1951 Orissa 378 (SB) seems to us open to grave doubt as it would have to be limited to those cases where no further vesting of the property by an intervening alienation should have taken place. We cannot help saying, on a plain reading of the section that if that is the correct view to take, then Sub-section (2) of Section 3 should not have been drafted in the manner in which it had been, but might well have been drafted differently. In fact, the adoption of such an interpretation would mean importing into the section certain words which are not to be found therein, and we have no hesitation in saying as a court of law that we have hardly any business to do so where the language of an enactment can be assigned a proper and reasonable meaning and no untoward consequences would seem to follow.
10. The correct position, in our opinion, therefore, is that neither the Jaipur Act of 1947 nor the Indian Act of 1937 applies to what we may call pre-Act widows. We hold accordingly.
11. It was next contended by learned counsel for the plaintiff that even if we came to the aforesaid conclusion so far as the Jaipur Act of 1947 is concerned, the position at this date has been greatly altered because the Hindu Succession Act, 1950 (No. XXX of 1956) has meanwhile come into force, and Section 14 of the Act comes to the help of the plaintiff. This section reads as follows:
''Property of a female Hindu to be her absolute property.
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.-- In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu 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, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.'
12. It is contended that Mst. Mohari is entitled to the benefit of this section and by virtue thereof she became a full owner of the right and interest acquired by her in the joint family property of her husband. and. therefore, she was entitled to claim partition of her share. Strong reliance was placed on the explanation appended to this section, and it was argued with great force that the word 'property' used therein bears a very extensive meaning and includes not only property both movable and immovable acquired by a Hindu woman by inheritance or devise or at a partition Tint also such property as she may have acquired in lieu of her maintenance and it was contended before us that the plaintiff was doubtless entitled to maintenance.
We have given our most careful and anxiousconsideration to this contention and are of opinion that there is no substance in it. We are fullyonscions that this section makes a radical alteration in the rights of a Hindu woman and has, broadly speaking, very considerably enlarged them as compared with what they used to be under the pre-existing state of Hindu law. It also admits of no doubt that by the very force of its language this section is retrospective in its character to the extent that it provides that property possessed by a Hindu female, no matter that it may have been acquired before or after the commencement of the Act shall become her absolute property by virtue of Section 14 of the Act of 1956. There is also high authority for the proposition that possession, inorder that it may fall within the ambit of this section, need not be actual, physical possession but may be constructive or of any other form sanctioned by law.
13. Be that as it may, it also seems to us to be clear that the essential pro-conditions for attracting the benefit of Section 14 are that the female Hindu must have in the first place 'acquired property', albeit before the commencement of the Act as contra-distinguished, for example, from a mere right of maintenance or residence claimed in this case, and, secondly, that she must have been in possession of it at the commencement of the Act and the section can have no application where she cannot be said to be in such possession. See Kotturuswami v. Veerayya, AIR 1930 SC 577. Where she is in such possession, the law clearly provides that henceforward she will be full owner thereof and not merely a limited owner. As stated in Mulla's 'Principles of Hindu Law,' 12th Edition at page 974:
'The radical change intended to be made in the limited connotation of women's property and the distinct departure from the old law has speaking generally the effect of converting limited ownership where it existed into absolute owner-snip.
The necessary consequence of the altered law was immediately to affect the incidents of woman's property not merely in respect of property that might be acquired and held by a female after the coming into force of the Act but also in respect of property already acquired by her in the past and possessed by her. In that sense the operation of the new law has been carried back and the section can be said to have been given retrospective effect.'
But this section, in our judgment, would have no application where a female Hindu never acquired any property at all or where, having acquired it, she happens to have lost her title thereto by alienation, surrender or otherwise and of which she was not or could not be said to be in juridical possession at the commencement of the Act of 1956. We hold accordingly.
14. The question, therefore, boils down to this: 'Can Mst. Mohari in the present case be said to have acquired any property before the commencement of this Act, or whether she was ever in possession of it at the commencement thereof?' The answer to this question can only be in the negative. The ease disclosed by the plaintiff in paragraph 3 of the plaint is that she had been turned out of the suit property soon after the death of her husband sometime in Smt. 2003 corresponding to sometime in 1946 A. D. She was, therefore, clearly not fn possession of the property at the commencement of the Act but had lost possession thereof some ten years before the Act came into force, As for the question whether she had acquired anyproperty before the commencement of the Act, we have already held above that the right of her husband in the joint family property had passed by survivorship to the surviving coparcener and did not devolve on her.
All that she probably held was either a right of residence or maintenance, or both, into which question it is not necessary for us to go in detail, and it is sufficient to say that it cannot be postulated from this that she had acquired any property 'in lieu of maintenance or arrears of maintenance' within the meaning of Section 34. It would be another matter where a Hindu woman may have been given a specific property in lieu of such maintenance which is certainly not the case here. We are, therefore, disposed to come to the conclusion that the plaintiff had neither acquired any property before the commencement of the Act nor was in possession of it at the commencement thereof, much less after it, and, therefore, Section 14 cannot help her.
15. In this view of the matter, we hold thatthe plaintiff's suit for partition of the joint familyproperty cannot be decreed. This appeal, therefore, fails and we hereby dismiss it but withoutany order as to costs.