1. Prayer (j) of the summons is opposed and raises an interesting question as to the construction of the Hindu Succession Act, 1956. The rest of the application is not opposed. The dispute relates to the properties belonging to the estate of one Debendra Nath Datta who died on 8-12-1947 leaving behind him as his heirs a widow the plaintiff Billabasini Datta and four sons, named, Dulal, Balai, Lakhshminarayan and Rajnarayan and two daughters named Sm. Sabitri and Sm. Namita.
2. This is a suit for a declaration of the shares of the parties and for partition of the estate of Debendra Nath Datta and was instituted on 10-4-1954. On 21-12-1954 a preliminary decree was passed in this suit. By that decree it was declared that the widow Billabasini and each of the four sons Dulal, Balai, Lakshminarayan and Rajnarayan was entitled to one equal fifth part or share of the immovable properties belonging to the estate and that the daughters Sabitri and Namita were entitled to have provisions made for their marriage expenses, maintenance and residence and it was ordered and decreed that a partition be made of the properties into five equal parts or shares and that the Commissioner do allot one equal fifth part or share of the properties to each of the four sons and also one equal fifth part or share of the said properties to the widow Billabasini Datta to be held and enjoyed by her as a Hindu widow in the manner prescribed by the Hindu Law.
3. The Hindu Succession' Act, 1956 came into force on 17-8-1956. This summons was taken out on 16-3-1957.
4. Prayer (j) of the summons is as follows: 'The Commissioner of Partition be directed to allot to the petitioner Sm. Billabasini Datta one equal fifth part or share of the properties to be held and enjoyed by her in severalty absolutely.'
This prayer is made in view of Section 14 of the Hindu Succession Act, 1956, which reads as follows :
'14. 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.'
5. On behalf of Billabasini Datta Mr. Sinha contends that Sm. Billabasini is entitled to hold the one-fifth share of the properties vested in her as a full owner. On the other hand Mr. Sen contends that--(a) the Hindu Succession Act, 1956, and in particular Section 14 of the Act does not apply to a pending litigation; (b) that the one-fifth share in the properties has vested in Sm. Billabasini by and under the preliminary decree and accordingly Sub-section (2) of Section 14 applies and Sm. Billabasini is not entitled to any relief as prayed for. In my opinion, Mr. Sinha's contention ought to succeed.
6. On the death of Debendra Nath Mullick, Sm. Billabasini became entitled in respect of all his properties to the same share as a son in view of Section 3 of the Hindu Women's Rights to Property Act, 1937. Billabasini acquired a share in the properties by inheritance immediately on the death of Debendra. The share so acquired by inheritance before the commencement of the Act is indisputably possessed by her and now must be held by her as full owner thereof and not as a limited owner in view of Sub-section (1) of Section 14 of the Hindu Succession Act 1956.
7. In my opinion, the properties were not acquired by and under a preliminary decree and Sub-section (2) of Section 14 of the Act has no application.
8. The preliminary decree does not confer on Billabasini a fresh title in lieu and in supersession of her antecedent title. Her one-fifth share in the properties was acquired and held by Billabasini by right of inheritance and continues to be so held by her under that right as declared by the preliminary decree.
9. Though the rights are crystallised and are conclusively determined by the preliminary decree, see Section 2 Sub-section (2) of the Code of Civil Procedure, Lachminarain Marwari v. Balmukund Marwari, 51 IA 321: 29 Cal WN 391: (AIR 1924 PC 198) (A), the preliminary decree is a step in a pending litigation and the suit still continues: see Jadunath Rai v. Parameswar Mallick , and any alteration in the rights of the parties subsequent to the preliminary decree must be adjusted before the final decree is passed: see Krishnalal Jha v. Mandeswar Jha, AIR 1921 Pat 256 (C); Madan Theatres Ltd. v. Dinshaw and Co. Bankers Ltd. . Where by legislation subsequent to the preliminary decree the rights of the parties are altered retrospectively, the Court must take into account and adjust the rights of the parties suitably and if necessary by altering the preliminary decree.
10. It is true that Section 14 of the Hindu Succession Act 1956 does not refer to pending litigations in express language. But on the face of it the section is retrospective and applies to 'any property possessed by a female Hindu whether acquired before or after the commencement of this Act.' The property which is the subject matter of the pending suit is within the clear ambit of the Section. There is no saving clause with regard to pending litigations. By necessary intendment the Section affects properties which are the subject matter of a pending litigation and the Court will give effect to this intention though there is no express reference to pending actions: see K.C. Mukherjee v. Mt. Ram Ratan Kuer, 63 Ind App 47: (AIR 193H PC 49) (E), and Hutchinson v. Jauncey, (1950) 1 All ER 165 (F).
11. In my opinion therefore Sm. Billabasini is entitled to an order substantially as played for in terms of prayer (j).
12. It is not therefore necessary to decide the wider question whether Sm. Billabasini would have been entitled to any relief had the final decree been passed in this suit, and I reserve my opinion on that question.
13. I pass the following order:--With regard to prayer (j) I order and direct that the Commissioner of Partition do allot to the petitioner Sm. Billabasini Dutt one equal fifth part of the share of properties to be held and enjoyed by her as full owner thereof. The preliminary decree will stand altered accordingly.
There will be order in terms of prayers (a), (b), (c), (d), (e), (f), (g), (h), (i), (k) and (l). With regard to prayer (m) the costs of and incidental to the application will be costs as in a partition suit.
The parties will have the usual liberty to bid at the sale to be held by the Commissioner and to set-off the purchase price against their respective shares.
14. There will also be an order in terms of the agreed draft minutes which has been handed over to me. In accordance with the agreed draft minutes I order and direct that--
(1) The Commissioner of Partition do divide the sale proceeds amongst the parties in accordance with their respective shares, after making provisions for costs under the preliminary decree dated 21-12-1954 and the provisions for the marriage expenses and the capitalised value of the right of residence and maintenance of Srimati Sabitri Dutta and Srimati Namita Dutta respectively.
(2) The Commissioner of Partition do pay to Sm. Pratima Mullick, Surendra Nath Mullick and Sm. Anandamoyee Dassi their respective dues under the respective mortgages executed by Dulal Chandra Dutta, the defendant No. 1 in their favour, out of the share of the said Dulal Chandra Dutta in the sale proceeds, and to pay the balance of Dulal Chandra Dutta's share to him.
(3) The cause title ot the suit and register be amended in the manner hereunder:
''Sm. Namita Dutt lately a minor under the age of 18 years but has now attained majority.'
15. Certified for Counsel. The Commissioner will be at liberty to continue to act on a signed copy of the minutes upon the undertaking of the applicant's Solicitor to complete the order.