JUDGMENT
Das, C.J.
1. This is a second appeal by the plaintiff, and raises the interesting question of an interest which has devolved on a widow under Sub-section (2) of Section 3 of the Hindu Women’s Rights to Property Act, 1937, as applied to agricultural land in Bihar, can be transferred by her during her life-time. The short facts out of which the question has arisen are these. One Bhoju Mahto had two sons, named Pem and Teko. Pem is the appellant before us. Teko died in 1946 leaving a widow named Mossamat Lilia who was defendant No. 3 in the suit. On the 8th April 1948. Mossamat Lilia executed a sale deed in respect of the interest of her husband which had devolved on her, in favour of defendants 1 and 2. The appellant brought the suit for a declaration that the aforesaid sale deed was void and not binding on him.
2. The learned Munsif, who dealt with the suit in the first instance, found (1) that Mossamat Lilia was not the widow of Teko, (2) that Teko died in a state of jointness with his brother Pem, and (3) that the sale deed in favour of defendants 1 and 2, respondents before us, was a sham transaction. The learned Subordinate Judge reversed the first finding of the learned Munsif and held that Mossamat Lilia was the married wife of Teko. He further found that there was no separation between Pem and Teko, and Teko died in a state of jointness with Pem.
The learned Subordinate Judge held however, that the right or interest in the joint family property which had devolved on Mossamat Lilia on the death of her husband Teko could be transferred by her in favour of defendants 1 and 2 and as Mossamat had admitted the execution of the sale deed, the sale deed was good during her life-time. On these findings, the learned Subordinate Judge allowed the appeal and dismissed the suit. Against this decision of the learned Subordinate Judge, the present second appeal has been preferred by the plaintiff Pem Mahton.
3. Learned Counsel for the appellant has frankly conceded before us that he is not in a position to challenge the “finding of the final court of fact that Mossamat Lilia was the married wife of Teko Mahton. The only point which he has argued before us is that on a proper interpretation of sub-sections, (2) and (3) of Section 3 of the Hindu Women’s Rights to Property Act, 1937, it should be held that Mossamat Lilia had no right to transfer her interest to respondents 1 and 2 during her life-time.
The argument of learned Counsel for the appellant is that under the Mitakshara law as administered in Bihar, no coparcener can alienate even for value his undivided interest without the consent of the other coparceners, unless the alienation be for legal necessity, or for payment by a father of antecedent debts; therefore, Teko had no right to alienate his undivided interest in the joint family property, and under Sub-section (2) of Section 3 of the Hindu Women’s Rights to Property Act, 1937 Mossamat Lilia had in the property the same interest as Teko himself had. If, therefore, Teko did not have any right to alienate his interest in the joint family property, Mossamat Lilia had also no right to alienate that interest during her lifetime — this, in substance, is the argument of learned Counsel for the appellant.
4. An exactly similar argument was made in Kunja Sahu v. Bhagaban Mohanty, AIR 1951 Orissa 35 (A), and the decision of their Lordships of the Orissa High Court in that case completely covers the present case. I can do no better than quote the observations which Pani grahi, J. made in that case. His Lordship said at page 39 of the report.
“As I read the two sub-sections, I come to the conclusion that Sub-section (2) limits the extent of the widow’s estate to ‘the same interest as her husband had’ while Sub-section (3) describes the character of that estate as a Hindu Woman’s estate. The proviso to Sub-section (3) creates a right in the widow to reduce the interest of her husband to her separate possession by claiming partition as a male owner.
The act does not effect a statutory severance of status though it creates, on the death of a coparcener, a limited interest known as the Hindu Woman’s Estate in favour of his widow. The coparcenary remains intact but the husband’s interest does not pass to his coparceners by survivorship and devolves on his widow. The widow remains a member of the coparcenary though she is not a coparcener herself. She can thus be represented by the Karta of the family and the interest that she has acquired is liable to fluctuation as the interest of any other living coparcener is, unless she carves out her estate from the coparcenary by a partition. Prior to the passing of the Act, she had no such right which could be enforced in a Court of Law.
The Act being remedial, it should receive a beneficial construction so that the purpose of the legislation may be carried out. If the appellant’s contention were to be accepted, the result would be that, on the death of a coparcener, his widow should invariably be driven to file a suit and she can claim no right in the coparcenary unless it is disrupted. This could hardly have been the result intended by the Legislature. On the other hand, by recognising the right of the widow to alienate for purposes for which a woman’s estate can be sold even while the coparcenary is left intact, no disruption of the coparcenary would be necessary.
According to the appellants argument, the husband was incapable of alienation during his life-time and therefore, his widow would likewise be unable to alienate because Sub-section (2) of Section 3 says that she has the same interest as her husband had. It would equally be arguable that the widow becomes a coparcener or the manager as her husband was the one or the other quoad the family property because she succeeds to the same interest of her husband. This reading of the section would render the next succeeding sub-section nugatory as the interest devolving on the widow shall be the limited interest known as Hindu Woman’s estate, if she is deprived of her right to alienate during her lifetime which she would have if she were the widow of a sole surviving coparcener. Sub-sections (2) and (3) would, therefore, be inconsistent with each other and would stultify the object and intendment of the Act.”
5. If I may say so with great respect, I am in complete agreement with the observations made above., Sub-section (2) of Section 3 of the Hindu Women’s Rights to Property Act, 1937, is in express terms subject to the provisions of Sub-section (3). Sub-section (3) states in the clearest of terms that any interest devolving or a Hindu widow under the provisions of Section 3 shall be the limited interest known as a Hindu woman’s estate. It is clear, therefore, that the interest which devolves on the widow is of the nature of a Hindu woman’s estate. If, therefore, under the Hindu Law that interest could be transferred during the life-time of the widow, there is no reason why Sub-section (3) should not be given the effect which the express terms of the sub-section justify.
6. Several other decisions have been brought to our notice, and it seems to me that all the decisions really point only one way. In the Full Bench decision of the Madras High Court in Parappa v. Nagamma, AIR 1954 Mad 576 (B), the position was thus explained:
“The Act, therefore, has conferred a new right on the widow of a deceased coparcener in modification of the pre-existing law. Section 3(2) of the Act does not bring about a severance of interest of the deceased coparcener. Certainly the widow is not raised to the status of a coparcener though she continued to be a member of the joint Hindu family as she was before the Act. The joint family would continue as before subject only to her statutory right. The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced, namely, that she continued the legal persona of the husband till partition.
From the standpoint of the other mala members of the joint family, the right to survivorship was suspended. The Legal effect of the fiction was that the right of the other members of the joint family would be worked out on the basis that the husband died on the date when the widow passed away. She would have during her life-time all the powers which her husband had save that her interest was limited to a widow’s interest. She could alienate her widow’s interest in her husband’s share; she could even convey her absolute interest in the same for necessity or other binding purposes. 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 the property was his separate property. If there was no severance, it would devolve by survivorship to other members of the joint Hindu family. This conception of the legal persona of the husband continuing to live in her steers clear of many of the anomalies and inconsistencies that otherwise would arise.”
Our attention has been drawn to two Bombay decisions: Mahadu Kashiba v. Gajarabai Shankar, 56 Bom LR 387: (AIR 1954 Bom 442)(C), and Dagadu Balu v. Namdeo Rakhmaji 56 Bom LR 513: f(S) AIR 1955 Bom 152) (D). Learned Counsel for the appellant has very strongly contended before us that their Lordships of the Orissa High Court have not correctly interpreted Sub-sections (2) and (3) of Section 3 of the Hindu Women’s Rights to Property Act, 1937, and he has submitted that the Madras and Bombay decisions are not in point, because according to the Mitakshara law as administered in Bombay and Madras States, a coparcener may sell, mortgage, or otherwise alienate for value his undivided interest in coparcenary property without the consent of the other coparceners. The two Bombay decisions do not, however, proceed on that footing. In 56 Bom LR 387: AIR 1954 Bom 442 (C), Bavdekar, J. made the following observations:
“Sub-section (3) of the Act specifically says that the interest devolving on a Hindu widow under the provisions of Section 3 shall be the limited interest known as a Hindu woman’s estate. That interest would obviously, therefore, have to be governed by the provisions of Hindu Law. The result of the sub-section will be that the widow could, without any legal necessity, alienate her own life estate in the property, but if she wanted to convey her undivided interest absolutely, it would be necessary that there should be legal necessity for the alienation.”
Similarly, in 56 Bom LR 513: ((S) AIR 1955 Bom 152) (D), his Lordshio Chagla, C. J. made the following observations:
“When the Legislature conferred upon the widow the very important right of claiming partition, the Legislature did not intend that this right should be illusive; it was a substantial right that the Legislature was conferring upon the widow. If Mr. Desai’s arguments were to be accepted, even though the widow may file a suit for partition and get her share partitioned, she can make very little use of it because her power to alienate even during her lifetime would be absent. She could only enjoy the property, but that she could have enjoyed in any case even without partition. Therefore, if we were to concede to the widow the right to partition and take away from her the right to alienate during her lifetime, we would make a substantial right conferred by the Legislature into a very illusory right.”
7. Therefore, it is clear from these decisions that it has been consistently held that the right which devolves on a widow under Sub-section (2) of Section 3 of the Hindu Women’s Rights to Property Act, 1937, is subject to the provisions of subsection (3) of Section 3 of that Act, and the nature of the right is that of a Hindu woman’s estate. Therefore, the interest which the widow gets on the death of her husband would be governed by the provisions of Hindu Law, so far as those provisions relate to a Hindu woman’s estate.
The result of Sub-section (3) of Section 3 of the Act, therefore, is that the widow can, without any legal necessity, alienate her own life estate in the property, but if she wants to convey her undivided interest absolutely, it is necessary that there should be legal necessity for the alienation. This, in my opinion, is the correct interpretation of Sub-sections (2) and (3) of Section 3 of the Hindu Women’s Rights to Property Act, 1937.
8. That being the position, the learned Subordinate Judge correctly held that the alienation which Mossamat Lilia had made in favour of respondents 1 and 2 was good for her life-time, and the appellant was not entitled to succeed in the suit for a declaration that the transfer was void and, therefore, not binding on him. The result, therefore, is that the appeal fails and is dismissed with costs.
Imam, J.
9. I agree.