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PETITIONER: SUKHRAM & ANOTHER

       Vs.

RESPONDENT: GAURI SHANKAR & ANR.

DATE OF JUDGMENT: 11/09/1967

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SIKRI, S.M. SHELAT, J.M.

CITATION:  1968 AIR  365            1968 SCR  (1) 476  CITATOR INFO :  E          1970 SC1730  (6)  R          1970 SC1963  (7)  RF         1977 SC1944  (35)  D          1991 SC1581  (8)

ACT: Hindu  Succession  Act  30  of  1956,  s.  14(1)-Coparcenary governed  by  Benares School of Mitakshara  rule  that  male coparcener  cannot  alienate his share of  property  without assent of other coparceners-- Whether applicable to  widow’s interest under s. 14(1).

HEADNOTE: The  first appellant, his brother H and his son  the  second appellant,  constituted  a  Hindu  Joint  family  and   were governed  by  the Mitakshara law of the Benares  School.  He died  in 1952 leaving him surviving his widow.  On  December 15, 1956, the widow sold a half share in a house and a  shop belonging to the joint family to the first respondent.   The appellants filed a suit for a decree declaring that the sale by the widow was without consideration and for an order can- celling the sale deed.  The suit was dismissed by the  Trial Court and, in appeal, by the High Court. In  appeal to this Court it was contended on behalf  of  the appellants that under the Benares School of the  Mitakshara, a  male  coparcener  is not entitled to  alienate  even  for value,  his  undivided  interest  in  coparcenary   property without  the  consent  of the other  coparceners  except  in certain  specified  cases,  and by s.  14(1)  of  the  Hindu Succession Act 30 of 1956 it could not have been intended to confer a larger right on the widow of a coparcener. HELD: On the death of her husband, the widow became entitled to   the  same  interest  which H had in  the  joint  family property under s.3(2) of the Hindu Women’s Right to Property Act,  18  of  1937, in the joint family  property   of  that interest,  by virtue of s.14(1) of the Hindu Succession  Act 1956, she became full owner on June 17, 1956 and being  full owner  she  was  competent to sell it for  her  own  purpose without the consent of the male coparceners of her  husband. [477D-G] A  male member of a Hindu family governed by  the.   Benares

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School  of Hindu Law is undoubtedly subject to  restrictions qua alienation of his interest in the joint family property. but a widow acquiring an interest in that property by virtue of  the  Hindu  Succession Act is not subject  to  any  such restrictions.   That is however not a ground  for  importing limitations  which the Parliament has not chosen to  impose. [478F] Madho Parshad v. Mehrban Singh, L.R. 17 I.A. 194;  Balgobind Das v. Narain Lal and Ors.  L.R. 20 I.A. 116 and  Chandradeo Singh  &  Ors.  v. Mata Prasad & Anr.  T.L.R.  31  All.  176 (F.B.); referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 21 of 1965. Appeal  by special leave from the judgment and decree  dated March 15, 1961 of the Allahabad High Court in Second  Appeal No. 2434 of 1960. N.C.  Chatterjee,  E.  C. Agarwala, Kartar  Singh  and  P.C. Agarwala, for the appellants. J. P. Goyal and B. P. Jha, for the respondents. 477 The Judgment of the Court was delivered by Shah, J. Hukam Singh and Sukhram-the first appellant in this appeal-were  two brothers.  Chidda-the second appellant,  is the son of Sukhram, Hukam Singh, Sukhram and Chidda  consti- tuted  a  Hindu  joint  family  and  were  governed  by  the Mitakshara  Law of the Benares School.  Hukam Singh died  in 1952  leaving  him  surviving  his  wife  Kishan  Devi.   On December 15, 1956, Kishan Devi sold a half share in a  house and a shop belonging to the joint family, to Gauri  Shankar. Sukhram  and his son Chidda then commenced an action in  the Court of the Munsif of Ghaziabad for a decree declaring that the  sale  by  Kishan  Devi to  Gauri  Shankar  was  without consideration,  and for an order cancelling the  sale  deed. The  suit was dismissed by the Court of First Instance,  the District Court, Meerut, and the High Court of Allahabad. In  this  appeal  the  only  question  which  falls  to   be determined is whether the sale deed executed by Kishan  Devi was  binding  upon the coparceners of her husband.   On  the death  of  Hukam Singh in 1952, it is common  ground  Kishan Devi  acquired  by virtue of s. 3(2) of  the  Hindu  Women’s Right  to Property Act 18 of 1937, the same interest in  the property  of the joint family which Hukam Singh  had.   That interest  was limited interest known as the ’Hindu,  Woman’s estate’: s. 3(3) of the Hindu Women’s Right to Property Act, 1937.  The Parliament enacted The Hindu Succession Act 30 of 1956, which by s. 14(1) provided that-               "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." The  plea raised in the District Court that Kishan Devi  was not  "possessed"  of the property which she  sold  to  Gauri Shankar  was  rejected, and has not been set up  before  us. Clearly  therefore, on the express words of s. 14(1) of  the Hindu Succession Act, Kishan Devi acquired on June 17, 1956, rights  of full ownership in the interest which Hukam  Singh had in the property of the family during his life time,  and she was competent without the consent of the male members of the family to sell the property for her own purposes. But Mr. Chatterjee for the appellants submits that under the Benares  School of the Mitakshara a male coparcener  is  not

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entitled  to alienate even for value his undivided  interest in  coparcenary  property without the consent of  the  other coparceners,  unless the alienation be for legal  necessity, or  if the coparcener is the father, for payment by  him  of his antecedent debts which are not illegal or  avvavaharika, and it could not have been intended by Parliament to  confer upon a widow in a Hindu family a larger right than the right which  the surviving coparceners could exercise at the  date of the sale by the widow.  Counsel says that the  Parliament by Act 30 478 of 1956 merely intended to confer upon a Hindu widow  rights of  full ownership in the interest in property in which  she had prior to that Act, only a limited interest, but did  not intend  to destroy the essential character of  joint  family property  so as to invest the widow with power  to  alienate that  interest without the assent of the coparceners of  her husband. It is true that under the Benares school of the Mitakshara a caparcener  may  not,  without  the  consent  of  the  other coparceners,  sell his undivided share in the family  estate for  his  own benefit: Madho Parshad  v.  Mehrban  Singh(1); Balgobind  Das  v. Narain Lal and Ors. (2)  and  Chandradeo. Singh  & Ors. v. Mata Prasad & Anr. (3) But the words of  s. 14  of  the Hindu Succession Act are express  and  explicit; thereby  a  female Hindu possessed of property  whether  ac- quired before or after the commencement of the Act holds  it as  full owner and not as a limited owner.  The interest  to which  Kishan  Devi  became entitled on  the  death  of  her husband under S. 3(2) of the Hindu Women’s Right to Property Act,   1937,  in  the  property  of  the  joint  family   is indisputably  her "property" within the meaning of S. 14  of Act  30  of 1956, and when she became "full owner"  of  that property she acquired a right unlimited in point of user and duration and uninhibited in point of disposition. We are unable to agree with Mr. Chatterjee that restrictions on  the  right of the male members of a Hindu  joint  family form the bed-rock on which the law relating to joint  family property  under the Hindu Law is founded.  Under the Law  of the Mitakshara as administered in the territory governed  by the Maharashtra and the Madras Schools and even in the State of  Madhya  Pradesh,  a Hindu  coparcener  is  competent  to alienate  for  value his undivided interest  in  the  entire joint  family property or any specific property without  the assent of his coparceners.  A male member of a Hindu  family governed  by the Benaras School of Hindu Law is  undoubtedly subject  to restrictions qua alienation of his  interest  in the joint family property but a widow acquiring an  interest in  that property by virtue of the Hindu Succession  Act  is not subject to any such restrictions.  That is however not a ground  for importing limitations which the  Parliament  has not chosen to impose. On the death of her husband, Kishan Devi became entitled  to the same interest which Hukam Singh had in the joint  family property of that interest, she became full owner on June 17, 1956,  and being full owner she was competent to  sell  that interest  for her own purposes, without the consent  of  the male coparceners of her husband. The appeal therefore fails and is dismissed with costs. R.K.P.S.                                        Appeal dismissed. (1)  L.R. 17 I.A. 194. (2)  L.R. 20 I.A. 116. (3)   I.L.R. 31 All. 176 (F.B.). 479

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