JUDGMENT
Raj Kishore Prasad, J.
1. This appeal is by the defendants from the decision of Mr. S.M. Karim, Subordinate Judge, Dhanbad, decreeing the suit for partition of the plaintiff to the extent of her 1/6th share. There was one Dhaju Mandal, whose widow is defendant No. 5. Dhaju Mandal and his wife, defendant No. 5, had five sons namely, defendants 1 to 4 and one Jyoti Mandal, who predeceased his father Dhaju Mandal. The widow of Jyoti Mandal is the present plaintiff. She has brought the present suit for partition basing her claim on the Hindu Women’s Rights to Property Act, 1937 (Act XVIII of 1937).
2. The main defence of the defendants-appellants was that whatever moveable and immovcable properties Dhaju Mandal had, he, during his lifetime about seven years ago, which would be 1941-42, divided them equally amongst his four sons, namely, defendants 1 to 4; and, he also made provision for the maintenance and upkeep of the plaintiff and for her residence, by allotting to her one room for her residence within the family dwelling house and also by enjoining upon defendants 1 to 4 to give her each 10 maunds of paddy every year, and, since then defendants 1 to 4 have been living separately and cultivating separately the lands allotted to them, and, they have also been delivering paddy to the plaintiff at the rate enjoined by their rather. On this defence, it was suggested that the plaintiff was not entitled to any share in the property belonging to Dhaju Mandal, and, therefore, her suit was not maintainable.
3. The learned Subordinate Judge has negatived the family arrangement set up by the defendants; but, for the purpose of the present appeal I will assume that there was such a family arrangement, and, I will consider only the question whether such a family arrangement, even if there was one, was binding on the plaintiff which could defeat the plaintiff’s suit for partition.
4. Admittedly, Jyoti Mandal died in December, 1940 leaving behind his widow, the present plaintiff, after the Hindu Women’s Rights to Property Act, 1937 had come into effect. The family arrangement is alleged td have taken place thereafter sometime in 1941-42. Admittedly, there is no registered or written document showing the family arrangement, but it is not necessary to decide whether the finding of the Court below, that the case of division set up by the defendants was untrue and made out simply to deprive the plaintiff of her just share in the property, is correct or not. I will, therefore, now proceed to consider the effect of such a family arrangement on the plaintiff.
5. Section 2 of the Hindu Women’s Rights to Property Act, 1937, which would be referred to hereafter as “the Act”, provides that notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate. This clearly means that Section 2 would apply to all Hindus, irrespective of the fact whether they are governed by the Dayabhag School of Hindu Law or any other School of Hindu Law or by customary law. Section 3 of the Act deals with devolution of property. Sub-section (1) of Section 3 of the Act provides that when a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of Sub-section (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son.
The proviso to Sub-section (1) of Section 3 further provides that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a
son or son’s son of such predeceased son, The first proviso to Sub-section (1) of Section 3, therefore, is clear beyond doubt that the widow of a predeceased son inherits just like a son the property of the family. Mr. Bhabanand Mukherjee, however, contended that Section 274 of Mulla’s Hindu Law provides that since the sons do not according to the Dayabhag Law, acquire any interest by birth in ancestral property held by the father, the father can dispose of ancestral property, whether moveable or immoveable, by sale, gift, will or otherwise in the same way as he can dispose of his separate property.
He, therefore, submitted that as the parties are governed by Dayabhag School of Law and, as provided by Section 274, a Dayabhag father can dispose of the property in any way he likes, his right of alienation cannot be questioned, and, if he has transferred, it cannot be challenged subsequently. He, therefore, submitted that in the present case as Dhaju Mandal exercised such a right and made a family arrangement by which he made provision only for residence and maintenance of the plaintiff, she is bound by the family arrangement, and, she cannot say that the family arrangement made by Dhaju Mandal is not binding on her.
This contention of Mr. Mukherjee is invalid in law and cannot be accepted. Section 2, in clear terms, as I have mentioned before, lays down that the provisions of Section 3 of the Act shall apply where a Hindu dies intestate, notwithstanding any rule of Hindu law or custom to the contrary. Section 2, therefore, obviously abrogates the rule of Hindu Law to that extent, and, as such Section 274 of the Hindu Law cannot possibly prevail over the provisions of Section 3 of the Act. In this view of the matter, in my judgment, the plaintiff’s right has not been affected by the alleged family arrangement even if it was made by Dhaju Mandal in his life-time, and, as such, her right to claim 1/6th share in the property remains unaffected, and, she has every right to maintain the suit for partition. In this view of the matter, the Court below has rightly decided the suit for partition.
6. In the result, the appeal fails, and, is dismissed; but, there will be no order for costs.