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PETITIONER: SATRUGHAN ISSER

       Vs.

RESPONDENT: SMT.  SUBUJPARI & OTHERS

DATE OF JUDGMENT: 04/08/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. BACHAWAT, R.S.

CITATION:  1967 AIR  272            1967 SCR  (1)   7  CITATOR INFO :  R          1977 SC2069  (7)

ACT: Hindu  Women’s Rights to Property Act (18 of  1937)  Section 2),   3(3)-Sope   of-Hindu  widow  claiming   partition   of coparcenary property-Whether right of survivorship of  other coparceners in such property extinguished-Nature of  widow’s interest-Devolution thereof.

HEADNOTE: C,  a Hindu widow, instituted a suit in April  1949  against the  collaterals her husband for a decree for partition  and separate possession of a are in the properties belonging  to a coparcenary, of which her husband is a member.  It was her case that her husband separated in 1934 from coparcenary and that on his death in October 1937, his share in the property devolved  upon  her  but  that  the  defendants  failed  and neglected  divide  the estate and deliver to her  the  share inherited  by  her C died 1951 and her  two  daughters,  the respondents in the appeal, were thought on the record as her heirs and legal representatives. The trial court dismissed the suit on the view that the plea of  separation of C’s husband from the coparcenary  in  1934 was not established and that his interest in the coparcenary property  devolved upon the other coparceners.   In  appeal, the  High Court reversed this decision and granted a  decree for possession of a share in the property as at the date  of the suit. On appeal to this Court, HELD  :  The  suit was rightly decreed by  the  High  Court. Although was not established that C’s husband separated from the  coparcenary  in 1934, upon his death in  1937,  by  the operation  of  section 3 of Act 18 of 1937, C  was  invested with  her  husbands interest in  the  coparcenary  property. When  she  instituted a suit for  partition,  that  interest became  defined  and vested in her free from all  claims  or rights  of  the coparceners of her husband.  On  C’s  death, even  though  the  interest was not separate  by  metes  and bounds, and was not in her exclusive possession, it devolved upon the nearest heirs of her husband i.e. the  respondents. [14 D]

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A widow of a coparcener is invested by s.3 (2) of the  Act(1 8 of 193 7) with the same interest which her husband had  at the time of his dealth in property of the coparcenary.   She is  thereby introduced in the coparcenary, and  between  the surviving  coparceners  of  her husband  and  the  widow  so introduced  there arises community of interest and unity  of possession.  But the widow does not on that account become a coparcener though invested with the same interest which  her husband  had in the property she does not acquire the  right which her husband could ha-to exercised over the interest of the other coparceners.  Because of statutory substitution of her  interest  in the coparcenary property in place  of  her husband,  the right which the other coparceners  had,  under the  Hindu  low  of the Mitakshara school,  of  taking  that interest  by the rule of survivorship remains  suspended  so long as that estate enures.  Although the interest  acquired by the widow under s. 3(2) is subject to the restrictions on alienation which are inherent in her estate, she still has 8 power  to make her interest definite by making a demand  for partition  as  a male owner may.  If the widow  after  being introduced  into  the family to which her  husband  belonged does  not seek partition, on the termination of  her  estate her interest will merge into the coparcenary property.   But if  she  claims  partition, she is severed  from  the  other members  and her interest becomes a defined interest in  the coparcenary property, and the right of the other coparceners to   take   that  interest  by   survivorship   will   stand extinguished.  If she dies after partition or her estate  is otherwise  determined, the interest in coparcenary  property which  has vested in her will devolve upon the heirs of  her husband.   To assume as has been done in some decided  cases that  the right of the coparceners to take her  interest  on determination  of the widow’s interest survives  even  after the  interest  has become definite, because of a  claim  for partition, is to denude the right to claim partition of  all reality. [11 C-12 B] Lakshmi  Perumallu  v. Krishnavenamma, [1965]  1  S.C.R.  26 referred  to; Moyya Subba Rao and Another v.  Moyya  Krishna Prasadam   and  Anr.,  I.L.R.  [1954]  Mad.   257;   Shamrao Bhagwantreao v. Kashibai and Others, AIR 1956 Nag. 110;  and Bhagabat  v.  Bhaivalal  &  Others,  ILR  [1957]  M.P.  114, disapproved.   Parappagari Parappa alias  Hanumanthappa  and Another v.Parappagari Nagamma and Others, I.L.R. [1954] Mad. 183, approved. There is no force in the contention that the right vested in the surviving coparceners to take the interest vested in the widow  enures to long ,is the widow does not by suit  or  by other  private  arrangement  reduce  her  interest  in   the property  of the coparcenary to exclusive  possession.   The right  which the widow may claim is not different  from  the right  which her husband could claim if he had  been  alive; therefore  the  right of the coparceners to take  the  joint property by survivorship on the death of the coparcener does not  survive  a  demand for partition by the  widow  in  the coparcenary. [12 G-H] Giria  Bai  v. Sadashiv Dhundiari and Others, L.R.  43  I.A. 151,  referred to.  Pratapmull Agarwalla v.  Dhanabati  Bibi and Others, L.R. 63 I.A. 33. distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 939 of 1963. Appeal from the judgment and decree dated March 28, 1958  of

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the Patna High Court in Appeal from Original Decree No.  458 of 1951. Sarjoo Prasad, Indu Shekhar Prasad Sinha, B. P. Singh.  Anil Kumar Sablok and U. P. Singh, for the appellant. N.C.  Chatterjee and D. Goburdhun, or respondents Nos.1  and 2. R.   B.  Datar,  Vineet Kumar and K. R. Chaudhury,  for  the respondent No. 9. The Judgment of the Court was delivered by Shah, J. Musamat Chando Kuer, widow of Babuji, instituted  a suit  on  April  23, 1949 in the Court  of  the  Sabordinate Judge, Darbhanga, against the collaterals of her husband for a decree for 9 partition  and  separate possession of a half share  in  the properties described in Schedules A to E and a fourth  share in Sch.  F annexed to the plaint.  It was the case of Chando Kuer  that  her husband Babuji separated in  1934  from  the coparcenary  of which he was a member, and on his  death  on October  28, 1937 his share in the family property  devolved upon her, but the defendants failed and neglected to  divide the  estate and deliver to her the share inherited  by  her. The suit was resisted by the collaterals of Babuji.   Chando Kuer died on March 9, 1951, and her daughters Subujpari  and Sujan    Devi   (hereinafter   collectively   called    ’the appellants’)  were brought on the record of the suit as  her heirs and legal representatives. Being  of the opinion that the plea of separation of  Babuji from  the coparcenary in 1934 was not established, and  that the interest of Babuji in the copercenary property  devolved upon  the surviving coparceners, the Trial  Court  dismissed the suit.  In appeal, the High Court of Judicature at Patna, granted  a decree for possession of a share in the  property as  at the date of the suit.  The held that on the death  of Babuji  on  October 28, 1937, Chando Kuer by virtue  of  the Hindu  Women’s Rights to Property Act, IS of 1937,  acquired in  the property of the coparcenary the same interest  which Babuji had, and by the institution of the suit for partition that interest became defined, and oil her death it  devolved upon the appellants as heirs to the estate of Babuji.   With certificate granted by the High Court, Satrughan the son  of Ghiran has appealed to this Court. Under the Mitakshara school of Hindu law, on the death of  a coparcener  his  individual  interest  in  the   coparcenary property   devolves  by  survivorship  upon  the   remaining coparceners, and his widow if any is entitled to maintenance only out of the property. But the Parliament enacted Act  18 of  1937  which  sought  to invest the  widow  in  a  family governed by the Mitakshara law with the same interest  which her  husband  had in the family estate at the  time  of  his death,  and  also  with the right  to  obtain  by  partition separate possession other interest.  Section 3 of Act 18  of 1937 as amended by Act 1 1 of 1938 insofar as it is material in this appeal) is:               "3. (1)               (2)   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 subsection (3), have  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

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             M14Sup.  CI/66---2               10               interest known as a Hindu Woman’s estate, pro-               vided  however  that she shall have  the  same               right of claiming partition as a male owner.               (4) This   Act  did  not  operate  to  regulate  succession   to agricultural  lands  in the Provinces,but  the  Province  of Bihar enacted Act VI of 1942 extending the operation of  Act 18 of 1937 to agricultural lands in Bihar with retrospective effect from April 14, 1937. The Act seeks to make fundamental changes in the concept  of a  coparcenary  and the rights of members of the  family  in coparcenary   property.   The  Hindu  law,  as   laboriously developed by the Anglo-Indian Courts in the light of certain basic  concepts  expounded by the ancient  law  givers,  had acquired  a degree of consistency and symmetry.  The Act  in investing  the widow of a member of a coparcenary  with  the interest  which the member had at the time of his death  has introduced  changes  which are alien to the structure  of  a coparcenary.   The  interest  of the  widow  arises  not  by inheritance   nor   by  survivorship,   but   by   statutory substitution:  Lakshmi Perumallu v. Krishnavenamma(1).   Her interest in the property is the limited interest known as  a Hindu  woman’s estate: but the Act gives her the same  power to claim partition as a male owner has.  The Act is  however silent about the mode of devolution of the property obtained on partition, on termination of her estate, about the rights of the surviving coparceners qua the interest vested in  the widow, about the rights of the widow qua the interest of the surviving coparceners, and about several other matters.   To resolve  the problem raised before us, we may in  the  first instance  refer to the principal characteristics of a  Hindu coparcenary and of the limited estate held by Hindu  females known as a Hindu woman’s estate. A Hindu coparcenary under the Mitakshara school consists  of males  alone: it includes only those members who acquire  by birth or adoption interest in the coparcenary property.  The essence of coparcenary property is unity of ownership  which is  vested  in  the whole body  of  coparceners.   While  it remains  joint,  no individual member can predicate  of  the undivided  property  that he has a definite  share  therein. The  interest of each coparcener is fluctuating, capable  of being enlarged by deaths, and liable to be diminished by the birth  of sons to coparceners: it is only on partition  that the  coparcener can claim that he has become entitled  to  a definite share.  The two principal incidents of  coparcenary property  are: that the interest of coparceners devolves  by survivorship and not by inheritance; and that the male issue of  a  coparcener acquires an interest  in  the  coparcenary property by birth, not as representing his father but in his own independent right acquired by birth. (1)  [1965] 1 S.C.R. 26. 11 Property  inherited  by a Hindu female who has  entered  the gotra  of the deceased owner by marriage acquires  according to  all  schools of Hindu law a widow’s estate  or  a  Hindu woman’s estate.  In that estate her right is of an owner and not that of a tenant-for-life: the property is vested in her and she represents it completely: so long as she is alive no one  has  any vested interest in the property held  by  her. Her  rights  of alienation are however restricted:  she  may alienate  the  corpus of the property only for  purposes  of legal  necessity  or  benefit of the  estate.   The  limited estate  of  a  Hindu  female  postulates  ownership  in  the

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property held by her subject to restrictions on her power of alienation and devolution of that property on extinction  of the  estate  of  the female on the heirs of  the  last  full owner. By  the Act certain antithetical concepts are sought  to  be reconciled.  A widow of a coparcener is invested by the  Act with the same interest which her husband had at the time  of his  death  in  the property of  the  coparcenary.   She  is thereby  introduced  into the coparcenary, and  between  the surviving  coparceners  of  her husband  and  the  widow  so introduced, there arises community of interest and unity  of possession.  But the widow does not on that account become a coparcener: though invested with the same interest which her husband  had in the property she does not acquire the  right which her husband could have exercised over the interest  of the other coparceners.  Because of statutory substitution of her  interest  in the coparcenary property in place  of  her husband, the right which the other coparceners had under the Hindu  law of the Mitakshara school of taking that  interest by  the  rule of survivorship remains suspended so  long  as that estate enures.  But on the death of a coparcener  there is  no dissolution of the Coparcenary so as to carve  out  a defined  interest in favour of the widow in the  coparcenary property:   Lakshmi  Perumallu  v.  Krishnavenamma.(1)   The interest  acquired  by her under s. 3(2) is subject  to  the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by  making a  demand for partition, as a male owner may.  If the  widow after  being  introduced into family to  which  her  husband belonged does not seek partition, on the termination of  her estate   her  interest  will  merge  into  the   coparcenary property.  But if she claims partition, she is severed  from the  other  members  and  her  interest  becomes  a  defined interest  in the coparcenary property, and the right of  the other coparceners to take that interest by survivorship will stand  extinguished.   If she dies after  partition  or  her estate is otherwise determined, the interest in  coparcenary property which has vested in her will devolve upon the heirs of  her  husband.   It is true that a  widow  obtaining,  an interest in coparcenary property by s. 3(2) does not inherit that  interest but once her interest has ceased to have  the character of (1)  [1965] 1. S.C.R. 26. 12 undivided interest in the property, it will upon termination of  her estate devolve upon her husband’s heirs.  To  assume as has been done in some decided cases that the right of the coparceners  to  take her interest on determination  of  the widow’s interest survives even after the interest has become definite, because of a claim for partition, is to denude the right to claim partition of all reality. Counsel for the appellant contended that the right vested in the surviving coparceners to take the interest vested in the widow  enures so long as the widow does not, by suit  or  by private  arrangement reduce her interest in the property  of the coparcenary to exclusive possession.  He submitted  that the  expression  "partition"  in S. 3(3)  means  not  merely severance  of status, but division of interest by metes  and bounds followed by assumption of exclusive possession by the widow.  There is no warrant for this submission.  The  widow acquires by statute the same right to claim partition  which a  male owner has, and as pointed out by the  Judicial  Com- mittee  of  the  Privy  Council in  Giria  Bai  v.  Sadashiv Dhundiraj and Others(1):               "In  Hindu  law,  "partition"  does  not  mean

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             division of property into specific shares;  it               covers...........  both division of title  and               division  of  property.   In  the  Mitakshara,               Vijnaneswara defines the word "vibhaga", which               is  usually rendered into English by the  word               "partition",  as  the  "adjustment  of  divers               rights regarding the whole by distributing  them               ’In  particular  portions of  the  aggregate."               Mitra Misra explains in the Viromitrodaya  the               meaning  of  this passage: he shows  that  the               definition  of  Vijnaneswara  does  not   mean               exclusively  the  division  of  property  into               specific shares as alone giving right to  pro-               perty,  but includes the ascertainment of  the               respective  rights  of  the  individuals,  who               claim the heritage jointly.  He says (Sarkar’s               translation,  ch.  I., s. 36); "For  partition               is made of that in which proprietary right has               already arisen, consequently partition  cannot               property   be   set  forth  as  a   means   of               proprietary  right.  Indeed, what is  effected               by  partition  is only the adjustment  of  the               proprietary right into specific shares". This  right  to  claim  partition which  a  male  owner  may exercise is conferred upon a Hindu widow by s. 3(3).  On the making  of a claim for partition the interest of  the  widow gets  defined.  The right which the widow may claim  is  not different from the right which her husband could claim if he had  been alive, therefore the right of the  coparceners  to take  the joint property by survivorship on the death  of  a coparcener  does not survive a demand for partition  by  the widow in the coparcenary. (1)  L. R. 43 I. A. 151. 13 The interest which a widow acquires under s. 3(2) of Act  18 of  1937  has no analogy with the interest  which  a  female member  of a Hindu joint family acquires in the property  of the  joint family allotted to her on partition  between  her sons  or grandsons.  It is true, as observed  in  Pratapmull Agarwalla  v.  Dhanabati  Bibi  and  Others(1)  that   under Mitakshara  law  when  the family estate in  a  Hindu  joint family  is divided a wife or mother is entitled to a  share, but  is not recognized as the owner of such share until  the division  of  the property is actually made, as she  has  no pre-existing   rights  in  the  estate  save  a   right   of maintenance.   If she dies before the property  is  divided, her share in the property falls back into the property  from which  it was carved out.  But a Hindu widow acquires  under s.  3(2), even before division of the property, an  interest in  property  and that interest gets defined as soon  as  an unequivocal demand for partition is made by her. The  dictum of the Madras High Court in Movva Subba Rao  and Another  v.  Movva  Krishna Prasadam  and  Anr(2)  that  the widow’s interest is a personal interest and comes to an  end on  her death cannot be regarded as a correct  statement  of the  law.   The view expressed by the Nagpur High  Court  in Shamrao  Bhagvantrao  v. Kashibai and  others(3)  that  "the right  of  a widow to obtain her share in the  joint  family property  (even after a suit for partition is filed  by  the widow)  under the Hindu Women’s Right to Property Act  is  a special  one.  It comes to an end with the widow,  when  her death  occurs during the pendency of a suit (filed by  her). The   cause  of  action  is  not  extended  to   her   legal representatives"  and  the observations made by  the  Madhya Pradesh  High Court in Bhagabai v. Bhaiyalal Others(4)  that

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"the  property obtained by a widow of a deceased  coparcener after  a  suit for partition does not  become  the  separate property  of  her  deceased husband and  on  her  death  the property  reverts  to  the  coparcenary",  proceed  upon  an assumption which is inconsistent with well settled rules  of Hindu   Law  according  to  the  Mitakshara   school.    The assumption that though the right vested in the widow by  the Act is a right of property which may on demand for partition become separated from the coparcenary property, it is  still liable to revert to the coparcenary on the determination  of the  widow’s  estate,  does  not give  full  effect  to  the statutory  conferment upon the widow of "the same  right  of claiming partition as a male owner." The  following  observations  made by  Subba  Rao.,  J.,  in delivering  the  judgment of the Full Bench  in  Parappagari Parappa  alias  Hanumanthappa and  Another-  v.  Parappagari Nagamma and (1) L.R. 63 I. A. 33.            (2) I.L.R. 1954 Mad. 257. (3) A.I.R. 1956 Nag. 110.        (4) I.L.R. 1957 M.P. It 4. 14 Others, (1) in our judgment, correctly set out the effect of the Act on the question under review:               "She  could  ask for  partition  and  separate               possession  of her husband’s share.   In  case               she   asked  for  partition,   her   husband’s               interest should be worked out having regard to               the  circumstances obtaining in the family  on               the date of partition.  If she 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.               If  there was not severance, it would  devolve               by  survivorship to the other members  of  the               joint Hindu family:" On  the  finding recorded by the Trial Court which  was  not challenged  in appeal before the High Court, Babuji did  not separate in 1934 from the other coparceners.  But he died in October  1937  and  by the operation of Act 18  of  1937  as modified  by  Bihar Act 6 of 1942 Chando Kuer  was  invested with  her  husband’s interest in  the  coparcenary  property agricultural   as  well  as  non-agricultural.    When   she instituted  a  suit for partition that interest  became  de- fined,  and vested in her free from all claims or rights  of the   coparceners  of  her  husband.   The  right   of   the coparceners to take that interest by survivorship on  Chando Kuer’s  death  was then extinguished.  On  her  death,  even though  the interest was not separated by metes and  bounds, and  was not in her exclusive possession it  still  devolved upon  the nearest heirs of her husband, her daughters.   The suit was therefore rightly decreed by the High Court. The appeal fails and is dismissed with costs. R.K.P.S.                            Appeal dismissed. (1) I.L.R. [1954] Mad. 183. 15