B.N. Maitra, J.
1. The plaintiff's case is that her husband, Jagannath Mukherjee, and his brother, Kalinath Mukherjee, defendant No. 2, were the shebaits of Kalighat Temple and they used to get their shares of the income as paladar. On the 14th Oct. 1954, her husband died leaving two widows, namely the plaintiff (Santilata) and Provabati Devi. The plaintiff had been living separately from her husband for long and maintenance wag granted to her. After her husband died, Provabati realised her husband's share of the pala from the temple committee, defendant No. 1. In 1966 Provabati died and the defendant No. 2 applied for letters of administration to her estate. That application was rejected. An appeal was preferred in the High Court and the same is pending. The plaintiff instituted the suit for a declaration that she was entitled to realise her husband's share of the income of pala, for accounts and an injunction against both the defendants.
2. The defendant No. 2 alone filed a written statement denying the plaintiff's allegations. It has been alleged inter alia that the suit is not maintainable and the plaintiff's remedy is only to sue for partition. The plaintiff is Jagannath Mukherjee's abandoned wife. So in the eye of law she was not entitled to inherit the properties left by her husband.
3. The learned Munsif granted a decree in her favour but the injunction was passed only against the temple committee, defendant No. 1. No injunction was passed against the defendant No. 2. The latter filed an appeal, which was also dismissed, Hence the present appeal.
4. The learned Advocate appearing on behalf of the appellant has first contended that the plaintiff made an application for maintenance according to the provisions of Section 488 Cr. P.C. and obtained maintenance. Maintenance was not paid and for that she had her husband imprisoned. Since she was living separately from her husband and there was an order of maintenance under Section 488 Cr. P. C., the same has effect of judicial separation. Hence after her husband's death she was not entitled to any of the properties left by Jagannath Mukherjee. To support this proposition the case of Vasantam Venkayya v. Vasantam Raghavamma in, ILR 1942 Mad 24: (AIR 1942 Mad 1) has been cited. It has been next contended that shebaitship is not immoveable property. At best it is a tangible property. Hence she cannot by any stretch of imagination inherit any share in the pala to which her deceased husband was entitled. On the 14th Oct. 1954. Jagannath died and at that time Hindu Succession Act did not come into force. So there was no scope for the applicability of the provision of Section 14 of the Act. Provabati Devi died in 1966. Hence for sixteen years, that is up to 1374 B. S. the plaintiff did not assert to claim any share in the pala. So in any view of the matter the suit is time barred. It has been lastly contended that the appellant defendant No. 2 is a co-shebait. No injunction can be passed against the co-shebait and so the suit is maintainable. The plaintiff's only remedy is to sue a suit for partition. Since no suit for partition was filed, the present suit must fail. The plaintiff asked for injunction against the temple committee and also against the defendant No. 2. But no injunction was granted by the trial court against defendant No. 2. Still the suit was decreed in full. So there is a defect in the judgment.
5. It is common ground that on the 14th Oct. 1954, Jagannath died. On the 17th June, 1956, the Hindu Succession Act came into force. So when Jagannath died, the question of his inheritance was governed by the principles of Hindu Law. Even at that time a widow could not be excluded from inheritance on the ground that she had obtained a decree or order for maintenance from her husband. It is immaterial whether the plaintiff obtained the order for maintenance according to the provisions of Section 488 of the Cr. P. C. After such an order was passed it cannot be contended in the eye of law that such order was tantamount to an order of judicial separation. According to the provisions of Hindu Law there is no scope for divorce, judicial separation and nullity of marriage. Those provisions were first introduced by the Hindu Marriage Act, 1955. Even after obtaining that order of maintenance, in the eye of law, the plaintiff remained Jagannath Mukherjee's wife and not an ex-wife. The case reported in : AIR1954Mad513 indicates that a wife and not a concubine, can ask for maintenance under Section 488 Cr. P. C. The Madras case cited on behalf of the appellant is clearly distinguishable because that case is not an authority for the proposition that an order for maintenance in favour of the wife has the effect of an order for judicial separation. On the other hand, it has been laid down in the case that a Hindu wife who has obtained a decree for maintenance against her husband cannot enforce it after she resumes cohabitation with her husband.
6. Then about the second point raised on behalf of the appellant. Law is well settled that shebaitship is property. This has been enunciated also by our Supreme Court in the case of Kalipada Chakra-borty v. Sm. Palani Bala Devi in : 4SCR503 . It has already been stated that the relationship of husband and wife did not peter out between Jagannath and the plaintiff after she had obtained an order of maintenance from the Magistrate's court under Section 488 Cr. P. C. So in view of the provisions of the Hindu Law, after Jagannath's death the plaintiff and the co-widow, Provabati, jointly inherited a life estate in that pala, which is a property. Let us now see what will be the position when the Hindu Succession Act came into force. Section 14(1) and (2) of the Act clearly speaks of 'Any property'. If before the commencement of the Act a Hindu widow holds a property as a limited owner and remains in possession thereof when the Act comes into force, according to Sub-section (1) she acquires full ownership thereof. It has already been pointed out that after Jagannath's death the plaintiff and Provabati jointly inherited a Hie estate and were holding the same. There was no ouster of the plaintiff at any time and so the plaintiff was in constructive possession of such turn of worship through Provabati from the 17th June, 1956. And that life estate was converted into full. ownership in view of Section 14(1) of the Act, and I find accordingly. In this connection the case of Mangal v. Smt. Rattno in AIR 1967 SC 1786 may be cited to show that Section 14(1) of the Act applie.s if a widow is actually in possession or in constructive possession, that is, the section will apply if her ownership in the property still subsists. It has already been pointed out that there was no ouster that she was in constructive possession through Provabati. The latter died only in 1966. The suit was instituted on the 12th March, 1969. So it must be held that the suit is not barred by limitation.
7. Discussion regarding the shebaitship has been made. The case of Banku Behari v. Kashinath, in : AIR1963Cal85 shows that a shebait is not a mere manager of debutter estate. It is a property which can be disposed of by will. The latest view of our High Court will appear from the case of Smt. Sovabali v. Kashi Nath, : AIR1972Cal95 . It has been stated that in that case that shebaitship can be transferred by a deed or will even if the executor is governed by Dayabhag school of Hindu Law. In this view of the matter it seems that no suit for partition was necessary and the suit is tenable. The prayer for injunction against the temple committee was rightly granted by the trial court. Defendant No. 2, Kashinath Mukherjee, was not restrained from exercising his right as shebait. Only the temple committee was restrained from making any payment to the defendant No. 2 of the share of the pala of Kalimata of Kalighat to which the plaintiff was entitled as the only heir of the husband. This injunction was rightly allowed. It appears that there are two prayers for injunction one against the defendant No. 1 and the other one against the defendant No. 2. Such prayer against the defendant No. 2 was rightly not allowed and for that the judgment will not be defective. The suit was rightly not decreed in part as only one set of court fee was paid for the prayer for injunction. So there is no defect on that score. So the contentions raised on behalf of the appellant cannot be sustained.
8. The appeal is, therefore, dismissed. There will be no order as to costs.
Let the records be sent down as early as possible.