13 August 1964
Supreme Court


Case number: Appeal (civil) 519 of 1961






DATE OF JUDGMENT: 13/08/1964


CITATION:  1965 AIR  825            1965 SCR  (1)  26  CITATOR INFO :  RF         1967 SC 272  (4,7)  RF         1977 SC2069  (6)

ACT: Hindu Women’s Rights to Property Act, 1937 (Act 18 of 1937)- Husband  member  of  joint  family-Will  by  husband-Whether amounts  to separation-Whether could be construed as  family arrangement-Widow’s interest-Determination-Whether as on the date  of  seeking partition or as on the date  of  death  of husband.

HEADNOTE: The  respondent, widow of S, the brother of  the  appellant, filed  a suit claiming half share in the entire property  by virtue  of  the  provisions of the Hindu  Women’s  Right  to Property  Act.   After the death of S, his only son  by  his first  wife  died at the age of 11  years.   The  respondent admitted  that S had purported to execute a will before  his death but contended that it was inoperative because he was a member  of  a Hindu joint family at the time of  his  death. The  courts  below found that the suit properties  were  the joint  family  properties of S and the appellant,  that  the will  executed by S was inoperative and not binding  on  the respondent  and that she was entitled to half share  in  the suit properties.  On appeal by special leave, the  appellant contended that (1) the will executed by S itself resulted in a  severance in the status of the two brothers  constituting the  joint  family and that in any event  separation  ensued between  them  at the death of S; (2) at any rate  the  will should  be construed to be a family arrangement made by  the Karta of the family and assented to by the respondent and by the  father and the foster-father of the respondent  on  her behalf, and (3) assuming that neither of the two contentions were correct, the interest to which the respondent would  be entitled  would be 1/4th share in the property and not  half share therein, this interest having to be ascertained as  on the date of the death of S. HELD  :  that  the High Court rightly  negatived  all  these contentions. (i)  Nowhere in the will had S stated that be wanted to  put an  end  to  the coparcenary.  Indeed,  the  very  assertion



therein-though it has been concurrently found to be  untrue- that  the  property  was not  joint  family  property  would preclude  an  inference  that  S  intended  to  express   an intention to separate and put an end to a coparcenary which, according  to that assertion, in fact did not  exist,  [30G- 31A] A.   Raghavamnma  v.  A. Chenchamnma, [1964]  2  S.C.R.  933 referred to. (ii)A  family  arrangement which is for the benefit  of  the family  generally  can be enforced in a court of  law.   But before  the court would do so, it must be shown  that  there was  an occasion for entering into a family arrangement  and it was acted upon. [31A-B] (iii)According  to the theory underlying the Hindu  law  the widow  of  a  deceased  Hindu  is  his  surviving  half  and therefore  as  long  as she is alive he must  be  deemed  to continue  to exist in her person.  This surviving half  had, under the Hindu law texts, no right to claim a partition  of the  property of the family to which her  husband  belonged. But the Act of 1937 has conferred that right upon her.  When the  Act  says  that she will have the  same  right  as  her husband had, it clearly means that she would be entitled  to be allotted the same share as her husband 27 would  have  been entitled to had he lived on  the  date  on which  she claimed partition.  The interest  devolving  upon the widow need not necessarily be either by survivorship  or by  inheritance  but could also be in a third way  i.e.,  by statute  and  where  the interest is taken by  her  under  a statute  it  would  be of a kind  provided  by  the  statute itself. [34B-D; 37B]  Case law discussed. Jadaobai v. Puranmal, I.L.R. [1944] Nag. 832, and  Natarajan Chettiar v.    Perumal   Ammal,   A.I.R.  1943   Mad.   246, disapproved. Siveshwar  Prasad v. Lala Har Narain, I.L.R. (1944) 23  Pat. 760 and Rajendrabati v. Mungalal, I.L.R. (1952) 31 Pat. 477, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 519 of 1961. Appeal  by special leave from the judgment and decree  dated December  11,  1958,  of the Andhra Pradesh  High  Court  in Appeal Suit No. 1142/1953. S.   T. Desai and T. V. R. Tatachari, for the appellant. G.   Venkatarama  Sastri  and  R.  Gopalakrishnan,  for  the respondent. The Judgment of the Court was delivered by Mudholkar  J.  This is an appeal by special leave  from  the judgment  of the High Court of Andhra Pradesh affirming  the decrees  for  partition and separate possession  of  certain movable  and  immovable  properties, passed  by  the  second Additional Subordinate Judge, Vijayawada. The genealogical table showing the relationship between  the parties set out below will be of assistance in  appreciating the facts of the case                       Potti Subba Rao                       (died in 1919) ------------------------------------------------------------ :              :            :          :           : First wife Sitaraimaiah  Second wife Lakshmi   Krishnamruti   :         (died on    (Plaintiff) Perumallu (died in 1930)   :                                (defendant)



 :        10.8.1938)  Krishnavena-   :                          mma Pulla Pao died in 1939 Potti  Subba Rao who died in the year 1919 was  survived  by three sons Sitaramaiah, Lakshmi Perumallu and  Krishnamurti. Sitaramaiah was married twice.  From the first wife he had a son  named Pulla Rao.  After the death of the first wife  he married   Krishnavenamma,   the  plaintiff  in   the   suit. Sitaramaiah  died on August 10, 1938.  No issue was born  to Krishnavenamma  who was only 14 years of age at the time  of Sitaramaiah’s death.  Pulla 28 Rao  died  in  the  year  1939  at  the  age  of  11  years. Krishnamurti died in the year 1930 i.e., before Sitaramaiah, without  leaving  any  issue  or  a  widow.   The  plaintiff continued  to stay in the same house as the  defendant  till the  beginning  of July, 1950.  Then she suddenly  left  the house and instituted the suit in question on the 6th of that month.   According to her Sitaramaiah and his two  brothers, defendant  and  Krishnamurti,  acquired  large  movable  and immovable property at Vijayawada, described in the  schedule to  the  plaint, with the aid of their  ancestral  business. She claimed half Share in the entire property set out in the schedules, by virtue of the provisions of the Hindu  Women’s Rights to Property Act, 1937.  She admitted that her husband had  purported  to  execute  a will  before  his  death  but contended that it was inoperative because he was a member of a Hindu joint family at the time of his death. The  defendant  contested  the  claim  on  various  grounds. According  to  him there was no ancestral property  and  the suit  properties  were  acquired by the  brothers  by  their individual efforts and treated as self-acquisition.  Further according  to him the will executed by Sitaramaiah is  valid and binding on the plaintiff and that the property  allotted to  the  plaintiff under the will was being enjoyed  by  the plaintiff  and further the properties allotted to Pulla  Rao devolved   upon  him  after  Pulla  Rao’s  death.    Lastly, according to him even if the property were held to be  joint family  property  of  Sitaramaiah  and  the  defendant   the plaintiff would be entitled only to 1/4th share in them  and not half share. The  courts below have found that. the suit properties  were the   joint  family  properties  of  Sitaramaiah   and   the defendant,  that  the  will  executed  by  Sitaramaiah   was inoperative  and not binding on the plaintiff and  that  the plaintiff is entitled to half share in the Suit  properties. ’the  trial  court  gave  direction to  the  effect  that  a commissioner  be  appointed for  ascertaining  the  property liable  to  be partitioned and for dividing  them  into  two equal shares by metes and bounds for the purpose of awarding to  the plaintiff the separate possession of her half  share in the properties. Mr. S. T. Desai who appears for the defendant-appellant  has not  challenged the concurrent findings of the courts  below to  the  effect that the properties acquired by  the  family were  joint  family  properties.   He,  however,  urged  the following three contentions before us :               (1)   The  will  executed  by  Sitaramaiah  on               August 3, 1938 itself resulted in severance in               the  status of the two  brothers  constituting               the joint family and that in any                                     29               event  separation ensued between them  at  the               death of Sitaramaiah;



             (2)   that  at  any rate the  will  should  be               construed  to be a family arrangement made  by               the karta of the family and assented to by the               defendant  and by the father and  the  foster-               father of the plaintiff on her behalf;               (3)   assuming   that  neither  of   the   two               contentions is correct, the interest to  which               the plaintiff would be entitled would be 1/4th               share  in  the  property and  not  half  share               therein.  This interest has to be  ascertained               as on the date of the death of Sitaramaiah. All these contentions were also urged before the High  Court but  were negatived by it and in our opinion, rightly.   Mr. Desai  has, however, placed reliance upon a recent  decision of  this  Court in A. Raghavamma & anr. v. A.  Chenchamma  & anr.  (1) in support of the contention that the will  itself effected a severance in status.  What was held in that  case was that a member of a joint Hindu family can bring about  a separation   in  status  by  a  definite   and   unequivocal declaration  of his intention to separate himself  from  the family  and enjoy his share in severalty by expressing  such an  intention even in a will.  It was further held that  the knowledge of the expression of intention to separate has  to be brought home to the persons affected by it and if that is done  it  relates back to the date when  the  intention  was formed and expressed.  A perusal of the will, Ex.  B-1, does not   however  unmistakably  show  that  the  intention   of Sitaramaiah  was to separate himself from the joint  family. At  the  outset he has stated : "I have executed  this  will regarding the arrangements to take effect after my life-time with  regard  to the enjoyment of the  joint  immovable  and movable  properties which are possessed by me and  under  my management  by  my  brother  and  others."  In  the   second paragraph he has stated that he had no ancestral property at all  and  that the business carried’ on by himself  and  his brother was established by them.  In the third paragraph  he directed that the plaintiff shall maintain his son Pulla Rao and that his brother would took after the interests of Pulla Rao.   The 4th 5th and the 8th paragraphs on which  reliance is placed by Mr. Desai run thus :               "4.  If  for any reason the  said  Krishnaveni               does  not  agree to be like  that  my  younger               brother   Lakshmi  Perumallu   shall   deliver               possession  of the upstair  house  constructed               newly   on  the  house  site  purchased   from               Nadakurthi               (1) [1964]2 S.C.R. 933.               p./64 3               30               Kristamma  and  others  and  the  tiled   room               situate  in the big street and purchased  from               Gunda   Subbarayudu  out  of   the   immovable               property  possessed by me in Bezwada  town  on               condition of including them in the half  share               of  the  property that shall pass to  my  -,on               after my life-time.               5.    The said Krishnaveni shall be at liberty               to   take  passion  of  the   two   properties               mentioned  in  paragraph 4 above, to  pay  all               kinds  of taxes payable thereon and  to  enjoy               freely  throughout  her  life-time  only   the               income  got  every  year  from  the  said  two               properties  without powers of gift,  mortgage,               exchange  and  sale by following  the  age-old               custom  and by maintaining the family  respect



             and  custom and the said two properties  shall               pass    to,my    son    Pulla    Rao     alias               Venkatasatyanarayana after tier life-time.               8.    My  younger  brother  Lakshmi  Perumallu               shall keep the remaining entire property joint               till     my     son    Pulla     Rao     alias               Venkatasatyanarayana   attains  majority   and               manage  the  same,  shall  bring  up  the  boy               properly,  celebrate  the marriage  and  other               auspicious functions and divide the half share               of the property after he attains majority  and               deliver possession of the same to my son." It seems to us difficult to infer from the recitals in these paragraphs  that Sitaramaiah had expressed  his  unequivocal intention to get separated in status.  No doubt, in the  4th paragraph  he  has  that in  certain  circumstances  certain property will be included in the half share of the  property that  would pass to his son after his death and he has  also said  in paragraph 5 that the plaintiff shall be at  liberty to  take  possession  of the  two  properties  indicated  in paragraph 4, enjoy them during her life time and that on her death  they will pass to Pulla Rao.  But in paragraph  6  he has referred to the remaining property -is "joint  property" and  has  repeated that in paragraph 7. Again, what  he  has said  in paragraph 8 militates wholly against the  inference of  separation  in status.  There he has enjoined  upon  the defendant  to keep the remaining property joint  till  Pulla Rao  attained  majority,  manage the same  and  divide  that property  between  himself  and Pulla Rao after  the  latter attained majority.  Nowhere  in the will has he stated  that be wanted to put an end to    the coparcenary.  Indeed,  the very  assertion  which  has been concurrently  found  to  be untrue that the property was not joint family property would preclude  an inference that Sitaramaiah intended to  express his  intention  to separate in status and put an ,end  to  a coparcenary which, according to that assertion, in fact did 31 not exist.  In the circumstances we cannot accept the  first contention of Mr. Desai. No  doubt, a family arrangement which is for the benefit  of the family generally can be enforced in a court of law.  But before  the court would do so, it must be shown  that  there was an occasion for effecting a family arrangement and  that it was acted upon. It is quite clear that there is  complete absence of evidence to show that there was such an  occasion or  the  arrangement indicated in the will was  acted  upon. The  letter Ex.  B12 upon which reliance was  placed  before the High Court on behalf of the defendant has not been found by  it to be genuine.  The defendant had also  pleaded  that the  provisions under the will were given effect to  but  no satisfactory  evidence  has been adduced to prove  that  the plaintiff was in enjoyment of the properties allotted to her under  the  will.  We cannot, therefore, accept  the  second contention of Mr. Desai. Coming  to  the list question there is a certain  amount  of conflict  in the decisions of the various High Courts.   One view is that the quantum of interest to which a Hindu  widow is  entitled  under s. 3(2) of the Hindu Women’s  Rights  to Property  Act, 1937, is to be determined as on the  date  on which she seeks to enforce partition under sub-s. (3) of  s. 3. The other view is that it has to be determined as on  the date  on which her husband died, that is to say, that it  is not  a  fluctuating interest increasing or decreasing  as  a result of deaths or births in the family. The  first mentioned view has been stated with  approval  in



Mulla’s  Principles of Hindu Law, (12 ed.) and it is  stated at pp. 109-110 :               "The  share  which devolves on a  widow  of  a               deceased   coparcener  is  not  a  fixed   and               determinate  share but what she takes  is  the               ’same interest as he himself had’.  Therefore,               until there is partition. she cannot predicate               the particular fraction of her share for it is               likely  to  increase or decrease by  birth  or               death  of other coparceners.  Her share  would               include  a  share in accretions to  the  joint               family  property till partition  is  effected.               Prior  to the Act, a widow was entitled  to  a               share  in  partition  among her  sons  in  her               capacity  as a mother (except in Madras).   It               has been held in a number of cases that  after               the Act the widow cannot claim a double  share               on  partition  between the sons,  one  in  her               capacity  as a widow and another as a  mother.               Under  the prior law, stridhan acquired  by  a               female  from her husband or father-in-law  was               taken               32               into account when a share was allotted to  her               on partition amongst the sons.  The share  she               gets  under section 3 (2) is not  affected  by               any  rule of Hindu law to the contrary and  it               has  been  held  in a Nagpur  case  that  such               stridhan received by her would not be deducted               from her share on partition." In support of this statement in law reliance has been placed upon the following decisions : Nagappa  v. Mukambe(1); Mahadu v. Gajarabai(2); Shivappa  v. Yellewa(3);  Gangadhar  v.  Subhashsini (4 )  ;  Tukaram  v. Gangi(5); Ramchandra v. Ramgopal(6); Hanuman v. Tulsabai(7). In  addition  to  these decisions  our  attention  was  also invited to     Gurudayal  v.  Sarju(8);  Kamal  Kishore   v. Harihar(9); Sabujpari v. Satrughan  Isser(1O);  Movva  Subba Rao  v. Movva Krishna Prasaadam(11); Parapa v.  Nagamma(12); Manicka   v.   Arunachala   (  13  )    ;   Harekrishna   v. Jujesthi(14);  Keluni  v. Jagabandhu(15);  The  Indian  Leaf Tobacco  Development Co. Ltd., v. K. Kotayya(16); Laxman  v. Gangabai(17) Bhondu v.  Ramdayal(18); Ratan Kumari v. Sunder Lal(19). The High Court itself refer-red to the decision in  Chinniah Chettiar  v. Sivagami Achi (20) which is a decision  of  the Full  Bench constituted for resolving an  apparent  conflict between  the decisions in Chinniali Chettiar’s case(2O)  and Subba  Naicker v. Nallammal(21). In the opinion of the  Full Bench there was really no conflict between the two decisions and that the right conferred by the Hindu Women’s Rights  to Property  Act  was a new right in modification of  the  pre- existing one.  The Full Bench further held that s. 3 (2)  of the Act does not bring about a severance of interest of  the deceased  coparcener,  that his widow is not raised  to  the status  of a coparcener though she continues to be a  member of  the joint Hindu family as she was before the  Act,  that the  joint family would continue to exist as before  subject only  to her the rights of the other members of the out  on, the basis that the husband die 1)   I.L.R. [1951] Bom. 442. (3)  I.L.R. [1953] Bom. 958. (5)  A.I.R. 1957 Nag. 28. (7)  A.I.R. 1956 Nag. 63. (9)  I.L.R. [1951] Pat. 357.



(11) I.L.R. [1954] Mad. 257. (13) I.L.R. [1961] Mad. 1016. (15) I.L.R. [1957] Cutt. 630. (17) I.L.R. [1955] M.B. 282. (19) A.I.R. 19591 Cal. 787. (21) (1949) 2 M.L.J. 536. (2)  I.L.R. [1954] Bom. 885. (4)  A.I.R. 1955 Orissa 135. (6)  I.L.R. [1956] Nag. 362. (8)  A.I.R. 1952 Nag. 43. (10) A.I.R. 1958 Pat. 405. (12) I.L.R. [1954] Mad. 183(F.B) (14) I.L.R. (1955] Cutt. 70 (16) A.I.R. 1955 Andh. 135. (18) A.I.R. 1960 M.P. 51. (20) I.L.R. [1945] Mad. 402. 33 on  the  date  when  the widow passed  away,  the  right  to survivorship  being suspended till then.  Further  according to  the Full Bench a widow can under the Act claim  a  share not  only in the property owned and possessed by the  family at the time of his death but also in the accretions  arising therefrom, irrespective of the character of the  accretions. Tile various decisions to which we have adverted rest on the view that the interest which the law has conferred upon  the widow  is a new kind of interest though in character  it  is what  is commonly known as the Hindu widow’s  estate.   This interest  is  in substitution of her right  under  the  pre- existing Hindu law to claim maintenance.  The decisions also recognise  that though the widow does not, by virtue of  the interest given to her by the new law become a coparcener she being  entitled  to  claim partition  of  the  joint  family property  is  in  the same position in  which  her  deceased husband  would have been in the matter of exercise  of  that right.  That  is to say, according to  these  decisions  her interest is a  fluctuating one and is liable to increase  or decrease according as    there  were deaths in or  additions to  the  members  of the family or according  as  there  are accretions  to  or  diminutions of  the  property.   In  our opinion  these  decisions lay down the  law  correctly.   To hold, as contended for by Mr. Desai and as would appear from the  two  decisions upon which reliance was  placed  by  him before  us Jadaobai v. Puranmal(1) and Siveshwar  Prasad  v. Lala Har Narain (2)-would mean that whenever a coparcener in a Hindu oint family dies leaving a widow a disruption  takes place in the family.  For, unless a disruption is deemed  to take  place, it would not be possible for the widow’s  share to be crystallised.  The argument of Mr. Desai, however,  is that  the words in the Act "his widow shall, subject to  the provisions  of  sub-s.  (3) have in the  property  the  same interest as he himself had" can only mean the interest which the  deceased coparcener had at the moment of his death  and the  words "shall be the limited interest known as  a  Hindu woman’s estate" show that the nature of her interest was  to be  the  same as already recognised by the Hindu  law.   The legislature did not, he says, intend to create a new kind of interest nor to make her a coparcener.  Undoubtedly she does not  become a coparcener, though her interest in the  family property  is to be the same as that of her deceased  husband except  that  in extent it is to be that of a  Hindu  widow. (Now, of course , it has been enlarged by s. 14 of the Hindu Succession  Act,  1956).  But a coparcener  has  no  defined interest in the joint family property and the right which he has is to claim for partition.  The quantum of his  interest would be determinable



(1)  I.L.R, [1944] Nag. 832. (2) I.L.R. (1944) 23 Pat. 760). 34 with   reference   to  the  date  on   which   such   member unequivocally  declares his intention to separate  and  thus put an end to the coparcenary.  It cannot even be  suggested that  the  event  of  the  death  of  a  coparcener  is  not tantamount to an unequivocal declaration by him to  separate from  the  family.  According to the theory  underlying  the Hindu  law  the widow of a deceased Hindu is  his  surviving half  and,  therefore, as long as she is alive  he  must  be deemed  to continue to exist in her person.  This  surviving half  had  under  the Hindu law texts no right  to  claim  a partition of the property of the family to which her husband belonged.  But the Act of 1937 has conferred that right upon her.  When the Act says that she will have the same right as her husband had it clearly means that she would be  entitled to be allotted the same share as her husband would have been entitled  to had he lived on the date on which  she  claimed partition. Jadaobai’s case(1) in which a different view has been  taken and  on which reliance has been placed by Mr. Desai may  now be considered.  In that case it was contended that the widow does not take any property by succession and, therefore, she is  not liable to produce a succession certificate  for  the execution  of a decree obtained by her husband.  In  support of  this  contention reliance was placed on  behalf  of  the widow  upon  the decision in Natarajan Chettiar  v.  Perumal Ammal (2). In that case Horwill J. observed as follows :               "  The widow does not obtain the  right  given               under  this  section (section 3 of  the  Hindu               Women’s  Rights  to  Property  Act,  1937)  by               survivorship.  She was not a coparcener before               her  husband’s  death  and  she  was  not  one               afterwards.   I do not however think  that  it               follows that because the widow does not obtain               her right by survivorship that she must obtain               it by inheritance, The effect of s. 3 cls. (2)               and  (3) may be regarded as a survival of  the               husband’s  persona in the wife giving her  the               same rights as her husband had except that she               can  alienate  property  only  under   certain               circumstances.  As the widow did’ not  inherit               her   right,  no  succession  certificate   is               necessary." The learned Judges of the Nagpur High Court observed that  a person   can  take  the  property  of  another   either   by survivorship  or by succession and that if, as held  in  the Madras  case,  the widow of a deceased coparcener  does  not take it by survivorship the only (1) I.L.R. [1944] Nag. 832. (2) A.I.R. 1943 Mad. 246. 35 way  in which she could take it would be by succession.   In the course of the judgment the learned Judges observed :               "Horwill J., in the Madras case quoted  above,               is of the opinion that the mere fact that  the               widow   does   not   obtain   her   right   by               survivorship  does not lead to the  conclusion               that  she obtains it by inheritance.   If  she               does  not claim it by inheritance we  fail  to               understand how she is claiming it in the  face               of the clear wording of the Act.  The observa-               tions  that the effect of section  3,  clauses               (2) and (3), may be regarded as a survival  of



             the husband’s persona in the wife, giving  her               the same rights as her husband had except that               she  can alienate property only under  certain               circumstances,  do not indicate  very  clearly               what  was  really intended to  be  laid  down.               Survivorship  having been ruled out  the  only               other  mode by which she will be clothed  with               the  rights  of her husband in  the  property,               though  to  a  limited  extent,  would  be  by               succession or inheritance if she claims  under               the Hindu Women’s Rights to Property Act." It  seems  to  us that the learned  Judges  were  not  quite correct  in saying that the property of one person  can,  on his  death,  devolve on another only by survivorship  or  by inheritance  and in no other way.  For, it is competent  for the  legislature  to confer a right on a person to  get  the property  of  another  on  the  latter’s  death  in  certain circumstances.  This is precisely what has been done by  the legislature  in  enacting  s. 3, sub-s.  (2)  of  the  Hindu Women’s Rights to Property Act.  Adverting to the  aforesaid decision  it was observed by another division bench  of  the same High Court in Gurdayal v. Sarju(1):               "Reliance-was,   however,   placed   for   the               defendants on Jadaobai v. Puranmal (2 )  where               a  Division Bench of this Court held that  the               interest of the husband devolves on the  widow               by  inheritance and not by  survivorship.   We               have no quarrel with that.  It does not matter               for the purposes of this case how the interest               which the Hindu Women’s Rights to Property Act               gives Sarjubai devolved on her.  The  question               is  of what does that interest consist.   Even               if  it  devolves  on her  by  inheritance  the               interest  is, according to the Act, ’the  same               interest  as the husband had’, and  ’the  same               right  of  claiming  a  partition  as  a  male               owner.’   Whether  this  right   devolved   on               Sarjubai   by  way  of  inheritance,   or   by               succession, or whether because of the Act, as               (1) A.T.R. [1952] Nag. 43.               (2) I.L.R. [1944] Nag. 832.               36               a  statutory right, would make Do  difference.               The right is the same as that of a male  owner               and  the interest is the same as  her  husband               had.   For these limited purposes  she  merely               steps into his shoe,-, and can be regarded  as               a continuation of himself." In  the next case relied upon, Siveshwar Prasad v. Lala  Har Narain(1) a Division Bench has held that the interest  which is  acquired  by a widow under the Hindu Women’s  Rights  to Property  Act, 1937 is not as a survivor but as an  heir  of her  husband.  The interest, therefore, is an asset  of  her husband  in  her  hands and can be proceeded  against  by  a creditor  even though it may be an undivided interest  in  a joint  family property.  It is difficult to  appreciate  how this decision is of assistance to the appellant.  No  doubt, the  husband’s  interest does not devolve on  the  widow  by survivorship but it does not follow from that the  husband’s interest  gets crystallised at the moment of his  death  and that it is to this interest that the widow succeeds.  On the other hand the view of the learned Judges that the husband’s interest  is  liable to be attached at the instance  of  the husband’s  creditors  despite its devolution  on  the  widow seems  to  accord  with the view that the  widow  takes  the



husband’s interest as the surviving half of the husband.   A passing  reference  was  also made  by  learned  counsel  to Rajendrabati v. Mungalal(2).  The question for consideration in  that case was the same as in Jadaobai’s case(3) and  the High  Court relying upon its earlier decision held that  the provisions of S. 214 of the Indian Succession Act, 1925 were attracted, the suit being one for the recovery of her  share of  the money due to the joint family of which her  deceased husband  was  a  member.   In the  course  of  the  argument reliance  was placed on a decision of the Madras High  Court in  which it was held that under s. 3 of the  Hindu  Women’s Rights to Property Act a widow of a deceased coparcener in a joint  Hindu  family becomes entitled to a right not  as  an heir but by statute and that she stands in the shoes of  her deceased  husband and continues to be a member of the  joint family.   This argument was rejected by the  learned  Judges who observed:               "With  the  greatest respect I  cannot  accept               this  proposition  specially in  view  of  the               principles which have been so definitely  laid               down  in  two Bench decisions  of  this  Court               referred  to above.  The lady may be  regarded               as  a  member of the joint family but  as  has               been  pointed out by this Court  the  interest               which devolves upon her after the death of the               last male holder, must be regarded as an               (1)I.L.R. (1944) 23 Pat. 760.                (2) I.L.R. (1952) 31 Pat. 477.               (3) I.L.R. [1944] Nag. 832.               37               interest descending to her as an heir, and  as               soon  as  it  is held that  she  acquires  her               interest  as  an  heir  section  214  of   the               Succession  Act  would come into play  and  no               decree can be passed in her favour unless  she               produces a succession certificate." As  we have already pointed out the interest devolving  upon the widow need not necessarily be either by survivorship  or by  inheritance  but could also be in a third way  i.e.,  by statute  and  where  the interest is taken by  her  under  a statute no further difficulty arises. We  are, therefore, clearly of the view that the High  Court was  right in allotting to the respondent half share in  the family property at its partition.  Accordingly we affirm its decree and dismiss the appeal with costs. Appeal dismissed.