(1) This appeal, which has been filed against the judgment of Jagadisan J. raises an important question relating to the construction of S. 3(2) of the Hindu Women's Rights to Property Act, 1937, which, for the sake of brevity, we shall refer to as the "Act". The precise form of the question before us is.
"Whether on the death of the sole surviving coparcener of a joint Hindu Mitakshara family, the widow of a predeceased coparcener, entitled to the benefits of the Act, will take by survivorship the entire family property?
In Manorama Bai v. Rama Bai, a Bench of this court, while answering that question in the affirmative, held that by virtue of S. 3(2) of the Act, the widow, after her husband's death, will become a coparcener with the surviving male members of the family and that she would, on the death of the sole surviving coparcener take the joint family property to the exclusion of an heir of the latter. This view is fundamentally opposed to the concept of a coparcenery under the Mitakshara system of jurisprudence where only the male members of a joint family are regarded as constituting the coparcenary. It is also opposed to the several decisions of this and other High Courts which have held that the widow, who becomes entitled to a share in the joint family property under the Act, does not take it as a coparcener but only by virtue of a special statutory right. Even so, the question might perhaps arise as to what exactly is the nature of the right of the widow in such cases, that is to say, whether the right which she obtains under the statute equates her to the position of a coparcener.
(2) Substantially what, therefore, falls to be decided in this appeal is, the correctness of the view taken on this point in .
(3) Before taking up that question we shall first refer to the facts which have led up to this litigation. Nagoji and Krishnamurthi, who were brothers, constituted a joint Hindu family. The former was married and the latter not. They had a sister by name Rukmani. Nagoji died on 10-1-1950 leaving behind him his widow, Kamala Krishnamurthi survived his brother only for two days. On his death, his brother's widow, Kamala claiming that she became entitled to the entire property, by survivorship, sold the property in suit to the appellant. Rukmani, as the heir of the sole surviving coparcener, Krishnamurthi, made a claim that she inherited the entire property from her brother and sold it to the first respondent. The suit instituted by the latter for recovery of possession of the property failed in the trial court. On appeal, however, the learned Subordinate Judge of Cuddalore, upheld Rukmani's title to half the property, the share possessed by Krishnamurthi, and granted a decree for partition in favour of her alienee.
The appellant, Kamala's alienee, filed a second appeal to this court against that decree but without success, Jagdisan J. who disposed of the appeal held that while Kamala would be entitled to her husband's share in the family property, her rights would not extend so as to vest in her even the interest possessed by Krishnamurthi, who survived her husband, and that his interest would go to his heir as his separate property. In reaching that conclusion the learned Judge followed an unreported judgment of this court in A. S. No. 299 of 1950, (Mad), Seshi Ammal v. Lakshmi Ammal, in preference to . In view, however, of the conflict of decisions in this court, the learned Judge, if we may say so with respect, very properly granted a certificate under Cl. 15 of the Letters Patent to enable the aggrieved party to file this appeal.
(4) It was settled law before the Act that a woman married to a member of a joint family became a member thereof; but she did not thereby become a coparcener. On the death of her husband, she continued to be a member of the family; even then she did not become a coparcener; for under the law, only male members of the family could constitute a coparcenery. Therefore, the wives of coparceners were not entitled to any interest in the joint family property; nor could they after the death of their husbands, take the interest of the latter in the family property on any theory of representation. The oft-quoted text of Brihaspathi
when a person dies and his wife survives, half his survives in her; when half the body of the person survives; how can another person take his property? Which formulates the theory of widow being regarded as the surviving half of her deceased husband, applies to the inheritance of the separate property of the husband. It does not apply to a case of a person dying as a member of a coparcenary. For, no individual member of a joint family can say that he has any certain definite share in the property. On the other hand, the entire family, constituting as it does a sort of corporation would be the owner of the property. But is not as if that all members of the family that have no interest in its property can obtain a share on partition. The male members alone have that right, the females being entitled only to be maintained. Thus joint family property is coparcenary property. The distinction between a joint family and a coparcenary within it is well brought out in he following passage in Mayne's Hindu Law and Usage, 11th Edn. page 324.
"When we speak of a Hindu joint family as constituting a coparcenary, who can trace descent from a common ancestor, and amongst whom no partition has ever taken place; we include only those persons who, by virtue of relationship, have the right to enjoy and hold the joint property to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation."
In other words, while a joint family under the Hindu law consists of males and females, that is, including daughters born in the family till their marriage, and woman married into the family, a coparcenary, which alone is the body having the ownership of the family property is a limited body within it consisting only of male members.
(5) The result of this is that woman married to a member of a coparcenary does not have any interest in the family property and after the death of her husband she becomes entitled only to receive maintenance therefrom and not to a share therein. It was with a view to remedy this defect in the law and to confer better rights on women, the Act was passed by the Central Legislature. But unfortunately, by reason of the limited powers possessed by the Central Legislature, at the time when the Bill was passed by that legislature, received the assent of the Governor General, it was held that it could operate only to regulate succession and devolution by survivorship of property other than agricultural land. This was remedied by the various Provincial legislatures enacting similar enactments with respect to devolution of agricultural property. Madras Act XXVI of 1947 extended the provisions of the Central Act to agricultural lands.
(6) The object of these enactments was to give better rights to women in respect of property. They accorded to the widow a right to succeed to her husband even in the presence of sons and have an equal share with them; they enabled her to obtain rights of her husband in the joint family property, as well. Their effect was to introduce a new set of heirs to a deceased male e.g. widow, son's widow and grandson's widow. Thereby a change was made in the general order of succession as well. But the enactments were confined only to a limited area of giving rights to widows of deceased, who, under the pre-existing law, on the death of their husbands, did not get rights to the property or interest of the deceased. They left other parts of Hindu law of succession and survivorship unaltered.
(7) In Umayal Achi v. Lakshmi Achi, 1945-1 Mad LJ 108: (AIR 1945 FC 25), the Federal Court held that S. 3(1) of the Act, which regulated succession to the separate property of a deceased Hindu would not apply to ancestral property possessed by a sole surviving coparcener, and that it was confined to the self-acquired property left by the deceased. Varadachariar J observed.
"It is true, as the preamble enacts, that the measure was intended 'to give better rights to women". But it must be remembered that the Act was not a codifying Act or even a general amendment of the Hindu law of Inheritance. It will help us to ascertain the precise scope of the Act, if we can ascertain the defects which it set out to remedy. Even under the ordinary Hindu law, a widow would in certain circumstances have succeeded to the property held by her husband as the last surviving coparcerner of as the holder of a share obtained on partition. By themselves, these cases did not call for the interference of the legislature. It is only if the owner had sons (including in that term, grand-sons and great-grand-sons), that the widow would be excluded by the sons. Legislative interference was therefore required to obviate hardship when the owner left a widow as well as sons"
Considering the scheme of the Act, the learned Judge held that the 'separate property' under S. 3(1), would be property in respect of which the son of a surviving coparcerner would not be entitled to claim co-parcenary rights but only right of inheritance on his father's death. That would therefore exclude ancestral property held by a sole surviving coparcener. The ordinary law of inheritance applied to it.
(8) The most important change brought about by the Act which alone is relevant for our present purpose, is that contained in sub-sections (2) and (3) of S. 3 of the Act. Under the former provision when a Hindu governed by any school of Hindu law, other than the Dayabhaga school or by customary law dies intestate, having at the time of his death an interest in a Hindu joint property his widow will have in the property "the same interest as himself had".
(9) Sub-section (3) provides that the interest thus devolving on the widow would be the limited interest known as a Hindu woman's estate. It also recognises a right in her to claim partition as a male owner. It will be seen from the terms of the section that the statute confers on the widow directly the same interest as her husband possessed in the joint family property. Under the ordinary law, a right to demand partition exists only in a coparcener. Presumably, for the reason that a woman would not become a coparcener by reason of the rights conferred on her by sub-section (2), the statute proceeds t confer on her a right of claiming partition as a male owner. In other words, a fiction is created that the widow becomes a male owner only for the purpose of claiming partition.
(10) Two matters may now be noticed. First, in regard to the actual interest taken by the widow, the statute does not create any fiction that she should be deemed to be in the position of her husband and thereby take the property. On the other hand, for the purpose of obtaining partition a fiction is created to make her a male owner. It is not necessary therefore that she should be made a coparcener in order that she might obtain the rights of her husband. In the matter of the Hindu Women's Rights to Property Act, 1937, In the matter of, 1941-2 Mad LJ 12 at p. 23: (AIR 1941 FC 72 p. 74) the Federal Court observed:
"It is true that S. 3 of the Act does not use the word 'survivorship' and it may be that the widow taking a share under the Act does not become a coparcener with the other shares; but there can be no doubt that in the case in which it gives to the widow of a deceased coparcener a right to a share in the joint property which she did not possess under the pre-existing law, it takes away to that extent the benefit of the rule of survivorship which would have accrued to the remaining coparceners."
In giving the widow the same interest as that possessed by her husband in the family property, and in limiting her rights to a woman's estate under the Hindu la, the Act has abrogated to some extent at least, the rule of survivorship that prevailed in regard to family property between the members of the coparcenary. For example, if the widow were to dispose of, during her lifetime, her interest in the property for justifiable purposes, the family would never get the property. On the other hand, if the widow were to die without making any such alienation, the property would revert to the family after her death; survivorship would then come into force.
In Subbarao v. Krishnaprasadam, the precise effect of S. 3 (2) was treated as merely suspending the right of survivorship which the coparceners had under the Hindu law prior to the Act; that in other respects the right of survivorship possessed by the male coparceners subsisted and operated in accordance with the true principles of Hindu law. A slightly different note was however struck in Parappa v. Nagamma (FB) where it was observed:
"If she (the widow) divided herself from the other members of the family during her lifetime, on her demise the succession would be traced to her husband on the basis that the property was his separate property."
This observation was considered in a latter Full Bench decision of this court, Alamelu Ammal v. Chellammal, (FB) ) to be a mere obiter and that it could not be held to have overruled the decision in
(11) Secondly, it is implicit from terms of S. 3(3) that the Legislature did not regard a widow obtaining the benefits under sub-section (2), as a coparcener. If she were intended to be one, there was indeed no need for the legislature to confer upon her expressly a right of obtaining partition. It is an accepted rule of interpretation of statutes that a court should not be prompt to ascribe and indeed should not, without necessity or some sound reason, impute to the language of a statute, tautology or superfluity. In other words although surplusage or even tautology is not an uncommon feature in legislative enactments, the ordinary rule is that a statute is never supposed to use words without a meaning; vide Craies on Statute Law 6th Edn. page 103.
(12) The immediate question before us is not so much as to whether the Act abrogates the rule of survivorship amongst male coparceners but whether a widow who is given certain rights in derogation of the right of the surviving coparceners, has been made a coparcener by the statute. In the opinion of the Federal Court, to which we have just now made reference a widow taking property under the Act would not prima facie be a coparcener with the rest of the family. But the learned Judges in did not regard this view as a final
pronouncement on the matter.
(13) We have, therefore, to consider both on principle and authority whether the Act in giving rights to a widow of a deceased coparcener intended to make her a coparcener with the surviving male members of the family. As we pointed out earlier, the Act was not a Code regulating the law of succession and survivorship in any comprehensive way. Except to the extent of ameliorating the position of widows in the cases specified it did not affect the rest of the Hindu Law of succession. In Shivappa v. Yellawa, Gajendragadkar J, While referring to this aspect of the legislation, observed:
"It is true that piecemeal legislation passed for removing obvious anomalies, or making pressing progressive changes, in Hindu law tends to lead to complications: because it is sometimes difficult to reconcile the new provisions made by the amending Acts with the rest of the structure of Hindu law. The effect of the provisions of S. 3 on the constitution of the surviving family after the death of a coparcener is an illustration in point. The undivided Hindu family would now consist of coparceners and a female who has a share in the properties of the family. The right to property is conferred on the widow without giving her the status of a coparcener. This position is likely to raise some problems which may not admit of logically consistent answer."
The ratio decidendi of several cases to which we shall presently refer appears to be that the effect of the death of a coparcener, with regard to the property of the family, will be that his widow is enabled to stand in his shoes, although she is not a coparcener; she will have only the rights and not the status of her husband who was a coparcener. In Kallianrai v. Kashinath, ILR 1943 All 307 at p. 309, 310: (AIR 1943 All 188 at p 189) a Bench of the Allahabad High Court observed:
"The Act was intended to give better rights to women in respect of property--that is the preamble to the Act--but there is no indication that the Act intended to interfere with the established law relating to joint family Whatever inroads it may have made on the doctrine of survivorship, it does not effect a statutory severance or disruption of the joint family. The widow as a member of a joint Hindu family is to have the same interest in the joint property as the deceased husband had and this devolution does not otherwise affect the joint family status unless the widow availing herself of the provisions of sub-section (3) claims partition."
recognised that the term 'coparcener' adopted in the Indian law referred only to members of an undivided family entitled to enforce partition. The learned Judges discussed at length the meaning of the term "coparcener" under the English law and tried to show how that word was used to indicate different concepts by Colebrooke in his translation of Jaganntha's digest and by the Privy Council in Shivaganga case Kattama Nachiar v. Rajah of Shiva Ganga, 9 Moo Ind App 539 (PC). But they then found that under every system of law, a coparcener had a right to obtain partition. This probably led them to conclude that the touchstone of coparcenership was a right of partition. From this they proceeded to say that as such a right has been given to a widow under S 3(3) of the Act. She should be regarded as a coparcener.
(14) We are, however, unable to agree with this reasoning. A right to obtain partition cannot mean that the property is held in coparcenary. Co-owners have a right of obtaining partition, but they are not coparceners. It is no doubt true that the term 'coparceners' has under the Hindu law been used to denote a concept entirely different from the one under the English law 'Daya' which can but be loosely translated as "heritage under the law of Mitakshara is the property to which one's right accrues by reason of his relationship to the previous owner. It is of two kinds; obstructed (Sapratibandha daya) and unobstructed (Apratibandha Daya). An obstructed heritage is one where the accrual of the right is obstructed by the existence of the owner. For example in a case of property owned by an individual his heirs would have no rights to it so long as that individual is alive. Then rights accrue only after his death. In the case of unobstructed heritage the owner's existence does not stand in the way of the accrual of rights to others. This occurs in the case of a Mitakshadra joint Hindu family where the right of a make person to property accrues by reason of his birth and does not depend on the death of another, although the death of a member might increase the quantum of interest in another.
Again the interest of each male member so born in family, is not regarded as his individual property till partition. Till that time it is only a fluctuating interest liable to be diminished by births of male children or correspondingly increased by deaths of coparceners in the family. As pointed out in Lakshmiammal v. Ramachandra Reddier the term 'coparcener' connotes a right vested by
birth in the male member in the family of unobstructed heritage. Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh, ILR 43 All 228 (AIR 1921 PC 62) observed that it would probably have been better if the words "coparcenery" and "coparceners" had not been used for conveying the idea of a family where the right to its property arises by birth. The translators of the texts of Hindu law, as well as judicial decisions finding it perhaps difficult to translate "appradibandha daya" adopted the word coparcener and coparcenary to indicate the particular concept, of heritage under the Mitakshara system. It will be wrong therefore to interpret the term coparcener under the Hindu law in the light of the meaning under the English law. A 'coparcener" under the English law does not obtain title by birth. He does so only by inheritance by virtue of descent from an ancestor. No female member of a joint Hindu family can acquire an interest by birth in, or by marriage into, a family. Therefore, she cannot be a coparcener in that family.
(15) The Hindu Women's Rights to Property Act nowhere says that the widow becomes a co-parcerner in the family. There is abundant authority to show that the benefits conferred on her by S. 3(2) of the Act, do not make her a coparcener. In Radha Ammal v. Commissioner of Income-tax, Madras, it has been held that the new rights created under the Act in favour of the widow do not have the effect of elevating the status of the widow making her a coparcener in the family. Similar view was expressed by another Bench of this court in Seethamma v. Veeranna Chetti, where it was pointed out that the widow of a coparcener would only be a member of the joint family with the special statutory rights conferred on her under the Act but that she would not have the status of a coparcener Rathinasabapathi v. Saraswathi Ammal while affirming that view
proceeded further and held that a widow obtaining properties under the Act would have no power to question the alienation's made by the manager of the family. The latter view has not however been accepted in subsequent decisions. We have earlier referred to the decision in . In that case Rajamannar C. J and Venkatarama Aiyar J while accepting the previous decisions that the position of a widow taking under the Act was not that of a coparcener but only that of a member with certain statutory rights held that the incidents of those rights specified in the Act were purely personal to her, e.g. she would be incapable of transmitting her rights to her or her husband's heirs but that the property would revert on her death to the joint family of which she was a member. Subsequent to that decision a Full Bench of this court in (FB) accepted the position that a widow taking property by virtue of S 3(2) of the Act did not do so as a coparcener.
(16) But the preservation of her statutory rights did require that she should be capable of preventing unjustified alienation of family property by the manager. It was this right that was recognised in Ramalingam Pillar v. Ramalakshmi Ammal 1957-2 Mad LJ 382: (AIR 1958 Mad 228) and in where this court held that it would be
competent for a widow in a joint family, entitled to the benefits of the Act, to interdict improper alienations of property made by a coparcener of her husband without even seeking partition. In both the cases, the learned Judges affirmed the view that the Act did not make the widow of a deceased coparcener or coparcener under the Hindu law. We have already referred to the decision to the Bombay High Court in , giving expression to the same principle. It is
unnecessary to multiply authorities beyond stating that both in Patna and Orissa, the same construction on the Act has been placed; vide Ramsaran Sao v. Bhagwat Shukul, and Kunjasahu v.
Bhagaban Mohanty, .
(17) We shall now advert to the effect and consequence of the provision contained in sub-sections (2) and (3) of S. 3. to show that the real intention of the legislature was not really to make the widow a coparcener, although the statute gave her all the interest which her husband had in the family property. Under sub-section (3) she will have only the limited estate of a woman under the Hindu law. Obviously, therefore, she cannot continue to hold her interest in the joint family property if she remarries. It has been held that she will forfeit her property rights in her husband's family in case of unchastity. No coparcener in a family forfeits his rights for such reasons. Again, the widow of a Karta in a joint family does not on his death, become herself a Karta, even though the other members of the family might be her own minor sons; see . This is on the principle
that nobody but a coparcener can be a Karta of a joint family and that as the widow is not a coparcener, she could not be a Karta. Again sub-section (3) gives her the right to obtain partition as any other male member of the family. There is however a distinction between the case of a male member seeking partition and the widow of a coparcener doing so. Where a male member obtains partition, the joint family will be disintegrated; but in the case of a widow working out her rights under the provision of sub-section (3) to S. 3, by seeking partition there can be no division in the family. Such partition is merely to effectuate the benefit conferred on her under the Act; after her death, the property will revert back to the joint family: Vide and (FB).
(18) It will be seen from these features that the legislature did not intend that her status in the family is to be identical with that of her husband. Her right cannot, therefore, be equated to that of a coparcener, but should be made to depend purely on the terms of the statute which conferred rights on her. It is true that the effect of the death of a coparcener, with regard to the property of the family, will, under the Act, be to make his widow stand in his shoes. But his death does not have the effect of severing his interest in the family property from the rest of it. Therefore the interest which the Act gives to the widow cannot be regarded as one obtained by her on succession. She not having had any right by birth or marriage, to the family property, cannot be regarded as staking the property on any theory of survivorship. It has therefore, been held that her rights are referable purely to the stature which created it. In Satyanarayanacharlu. v. Narasamma, 1943-2 Mad LJ 282, (AIR 1943 Mad 708) Horwill J. stated the position thus;
"It does not follow that because the mother is not a coparcener and did not obtain the property by survivorship, she must have obtained it as a heir. She became entitled to her rights by statute". The foundation of the widow's rights being not on the basis of any pre-existing rule as to devolution of property but purely on the statute, we have next to see whether, on the terms of the statute, she gets the same rights as that of a coparcener.
(19) It has been argued that as the statute gives the widow the same rights in the family property as that possessed by her husband, it should be considered as creating a fiction by which the personality of the husband is continued to exist in the widow, and as the deceased was a coparcener, his widow should equally be regarded as a coparcener. This contention is no doubt supported by the judgment in , where it was observed that the right of the widow
being founded on the fiction that her husband continued to live in her, the interest possessed by the husband should be held not to have lapsed on his death, but on the other had, vested in his widow. It is true as observed by Lord Asquith in East End Dwelling Co Ltd. v. Finsbury Borough Council 1952 AC 109 that
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it... "
But as we have indicated earlier, S. 3(2) does not create any fiction. It simply confers the right possessed by the husband on his widow after his death. A statutory fiction is generally created by the use of the words "as if", or "deemed to be " etc. Those words are not present in S. 3(2). Contrast this with Section 3(3) which creates a fiction by deeming the widow to be a male member of the family for the purpose of obtaining, by partition, her share of the property. In the learned Judges no doubt say that the principle
underlying S 3(2) is a diction of the husband's personality continuing to live in his wife even after his demise. We are, with respect, unable to share that view, as S 3(2), in terms, does not create any such fiction. The text of Brihaspathi to which w have made reference at the beginning of this judgment, only gives a reason for giving the wife priority in the scheme of inheritance to her husband's separate property. Assuming that such reason amounts to fiction as to the perpetuation of her husband's property so as to enable her to inherit that property that fiction has never been applied to regulate devolution of coparcenery property. The most that can be said of S 3(2) of the Act is that a woman succeeding to property is not unknown to Hindu law.
(20) Law does sometimes create fictions to avoid injustice. Not unoften fiction have been created by legislation to bring a matter outside the ambit of the law or statute within its frame work. But it is not necessary for a statute to enact a fiction, because it can legislate directly to achieve its purpose. Where a statute has created a fiction, questions will often arise as to how far such fiction could be extended. One salutary rule is that fictions cannot be extended so as to subserve the purpose not intended by the Legislature; but at the same time, within the sphere of its operation, it must be conceded that it would import all the incidents consequent its creation, that is all the consequences and incidents that will flow if one were to treat fiction as the real state of things. However, no question of any consideration of the logical result of a fiction can at all arise where it has not been created. Where, therefore, the statute as in the present case, simply suspends the Hindu law of survivorship and provides directly for the wife of a coparcener to take his interest in the family property there is no scope for the operation of any fiction or of drawing logical conclusions therefrom. For example, you are not bidden to imagine under the statute in this case that a woman who is not a coparcener, is to be treated as one. If the statue has created such a fiction the logical consequence will be that she will take the property under the law as a coparcener and not under the statute. But what has been done by the Act is to create in her a new right by its own force without resort to any device by way of a fiction.
In the learned Judges have held that from the fact
that rights were given to a widow under the statute it must be assumed that it intended her to be a coparcener. Such a view can hardly be supported. So long as the legislature is acting within the ambit of its competence, its powers are plenary; it need not legislate by adding a fiction to the existing law; it can legislate directly. As we said, S. 3(2) cannot be read as creating the fiction that the widow of a coparcener is herself a coparcener; it allows her certain rights vi statute. The extent and nature of the interest created in her will, therefore, have to depend on the true construction of the statute.
(21) We have earlier referred to the fact that the statute in the instant case is a fragmentary piece of legislation enacted with the limited object of giving certain rights to Hindu widows in the property or interest possessed by their husbands. The statute does not purport to affect or interfere with the other branches of the Hindu law. In the absence of express language, it cannot, therefore, be assumed that, for the purpose of giving rights to widows, the Legislature intended to throw overboard the fundamental concepts of the Hindu law of succession and rules of survivorship. As has been pointed out in Maxwell on Interpretation of Statutes, 11th Edn. at page 78:
"One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual other natural sense, would be to give them a meaning other than that which was actually intended.......In construing the words of an Act of Parliament we are justified in assuming the legislature did not intend to go against the ordinary rules of law unless the language they have used obliges the court to come to the conclusion that they did so intend"
(22) The same principle has been stated in Craies on Statute Law, 6th Edn at page 121, thus:
"To alter any clearly established principle of law a distinct and positive legislative enactment is necessary 'Statutes' said the Court of Common Pleas in Arthur v. Bokenham, 1708-11 Mod, 148-150 are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare"
(23) Recently a Full Bench of this court applied this principle in the interpretation of this very enactment in
(24) A statute can prima facie be construed as changing the law to no greater extent than its words or necessary intendment require. For example, under the Hindu law a sole surviving coparcener has got the right to dispose of the property during his lifetime and even by way of a testamentary disposition. If he dies intestate his properties will go to his heir. It is not necessary for the purpose of giving rights in property to the widows of coparceners, that this right possessed by the sole surviving coparcener or his heirs should be imperilled; indeed, there is nothing in the statute to show that the Legislature ever in tended to interfere with the rights of the sole surviving coparcener. A true and harmonious construction of the statute, in the light of the other parts of the Hindu law, would, therefore, require a balancing of the rights created in favour of the coparcener's widow under the statute and the right possessed by the sole surviving coparcener under the general law.
(25) In Chinniah v. Sivagami Achi, ILR (1945): Mad 402: (AIR 1945 Mad 21) it was held that, having regard to the nature of the interest of a coparcener in a joint family governed by the Mitakshara law, his widow would, under the Act get no greater rights than those possessed by her husband and her share at partition, would be liable to increase or decrease by the death or birth of any member in the family. It has been argued on behalf of the appellant that the fluctuating nature of the widow's interest would show decisively that she was to be a member of the coparcenary. We are, however, unable to regard it so. Fluctuation of the widow's interest exists because her husband's interest was itself liable to such fluctuation had he been alive. It is not any special attribute of the estate by her under the Act, to entitle one to draw inference from it as to the legislative intent. Secondly fluctuation of interest in family property can exist only so long as the coparcenary exists. When the coparcenery becomes extinct e.g. by partition or by the death of the last surviving coparcener there will be no scope for any increase or decrease of shares.
(26) The question therefore is one of adjusting the rival rights of the heirs or legatees of the last surviving coparcener (whose rights have not been taken away by the Act) and the widow whose rights have been declared by it. In other words, the fluctuation of a widow's interest can take place only till one coparcener lives. When that stage is reached, the rights of the widow should be held to have been crystallised. To hold otherwise would lead to the right to property of the sole surviving coparcener under the general law being impaired. The Act has not the effect of interfering either with his rights, or those of his legatees or heirs. If the family remained undivided till the death, such legatees or heirs must take subject to the rights of the widow. In other words the benefit of the fluctuation in interest can accrue to the widow only to the maximum extent of one-half and no further.
(27) In the learned Judges held that the position of the widow should be analogous to that of a Dasiputra. But a Dasiputra has no interest in his father's property so long as the latter is alive. Nor can he claim a share in the coparcenary property of his putative father. It has however been held that where a father had not prohibited him from taking a share in his property, he and the legitimate son of his putative father should succeed as coparceners inter se. But this is because of the special texts of Hindu law. As has been pointed out in Valliappa Chetti v. Natarajan, ILR 55 Mad 1: (AIR 1961 FC 294) the rights conferred on an illegitimate son come before the Chapter on obstructed heritage. An illegitimate son in a Sudra family has the status of a son and though he is given only limited rights, he is regarded, in law, as a member of the family. We are unable to regard the case of an illegitimate son, whose rights are founded on special texts of the Hindu law, as a member of the family. We are unable to regard the case of an illegitimate son, whose rights are founded on special texts of the Hindu law, as affording a proper analogy to the position of a widow in a coparcenary under the Act.
(28) Our attention was invited to a recent judgement of the Madhya Pradesh High Court in Bhondu v. Ramdayal, (FB) where it was held that a Hindu widow obtaining an interest by virtue of S 3(2) of the Act would be in the position of a coparcener along with her minor son. That conclusion was reached on the basis the Act puts the widow in the place of her husband, she being entitled on his death, to the indefinite and fluctuating interest in the joint family property which he himself had till the moment of his death. We have already pointed out that the fluctuating nature of the interest is not due to any special characteristic of her rights, but is merely incidental to the estate she took namely her husband's interest.
(29) Jagadisan J. has referred to an unreported judgment of this court in A. S. 299 of 1950 (Mad). In that case, one Mathurbuthan Aiyar had by his first wife a son. Ramamurthi. By his second wife, he had also a son. Ramamurthi became divided from his father even during his lifetime. The rest of the members of the family remained undivided. Mathurbhuthan Aiyar died first. A few months later his son by the second wife died. Thereupon, the first wife filed a suit for partition claiming half a share of the properties. The second wife pleaded that as her deceased son was the sole surviving coparcener of the family at the time of his death his interest, namely, a half share, would come to her by inheritance and that she and the first wife would together be entitled to the other half. This contention was upheld by this court. Panchapakesa Aiyar J delivering the judgment of the bench observed:
"To say that the plaintiff and the first defendant would be entitle to take a half share each ignoring the birth and death of the male child of the first defendant and that effect of his being the sole surviving coparcener and the last full male holder would be running against the authority of Hindu law"
This decision has been referred to in , but without
any comment. We are of opinion that the case in A. S. No 209 of 1950 (Mad) has been correctly decided.
(30) To sum up. The term coparcener under the Mitakshara system of jurisprudence has a distinct meaning. Its essential characteristic is that the coparcener possesses a right to the family property by birth. the existence of a mere right to partition of family property, cannot be regarded as the touch-stone of coparcenership. Only a male born or adopted into the family can under the ordinary Hindu law, be a coparcener. the right of the widow of a coparcener under the Act is derived under the statute and not by any fiction so as to enable her to take under the general law. Section 3(2) of the Act does not, either expressly or by implication, create a fiction. the very existence of S. 3(3) would imply that she has not been regarded by the Legislature as a coparcener. Nor can S. 3(2) to read as conferring on the widow all the rights of a coparcener. It was not necessary for the Legislature to make her a coparcener for achieving its purpose. As the legislation is not a Code on the law of succession, it has to be construed consistently with the rights possessed by a sole surviving coparcener of a Hindu family under the ordinary law. Fluctuation of widow's interest so long as she chooses to remain in the family by births and deaths of coparceners therein is an inherent feature of her husband's interest which has been given to her and it cannot be regarded as any special feature of her estate, so as to indicate a legislative intent to confer on her the rights of a coparcerner. section 3(2) read in the light of the intention disclosed by the other provisions in the Act and consistently with the existing general law can only mean that the surviving coparcener can take the family property subject to the right s of the widows of other predeceased coparceners. It follows that the fights of the widow of a coparcener will have to be worked out harmoniously with the rights of the sole surviving coparcener. The right of one cannot therefore defeat that of the other. Thus, when a sole surviving coparcener in a Hindu joint family dies leaving his own heirs as well as a predeceased coparcener's widow, the former will inherit his share of the family property subject to the rights of the latter.
(31) From what we have stated above, it will follow that , in so far as it held that the widow of a deceased
coparcener in a joint family can become a coparcener in the family and take by survivorship the entire family property on the death of the sole surviving coparcener, has not been correctly decided. We answer the question formulated at the beginning of this judgment in the negative.
(32) The appeal fails and is dismissed with costs.
(33) Answer in the negative.