PETITIONER: S. S. MUNNA LAL Vs. RESPONDENT: S. S. RAJKUMAR AND OTHERS DATE OF JUDGMENT: 23/02/1962 BENCH: ACT: Hindu Law--Jains--Adoption--Widow, if can adopt without express authority of husband--Preliminary decree for partition declaring widow's share--Whether share "possessed" by widow--Death of widow--If share reverts to estate--Hindu Succession Act, 1956 (30 of 1956), ss. 4,14,15 and 16. HEADNOTE: G, a Digamber Jain of the, Porwal sect, died in 1934 leaving behind his widow Smt. K, his son G who died in 1939 and three grandsons M, P and R. In 1952 M's son S filed a suit for partition of the joint family properties. Rajkumar, claiming to be a son of P adopted by his widow, claimed a 1/4th share in the joint family property. The adoption was challenged on the ground that no express authority had been given by P to his widow to adopt. The trial court held that no express authority was required by a sinless Jain widow to adopt a son and that the adoption was duly and properly made. Accordingly, a preliminary decree declaring the shares of Smt. K, the branch of M, the branch of R and of Rajkumar to be 1/4th each was passed. M and others pre- ferred an appeal to the High- Court mainly against the findings on the question of adoption. During the pendency of the appeal, the Hindu Succession Act, 1956, came into force. Shortly thereafter Smt. K died. The High Court upheld '.he decision of the trial court on the question of the adoption of Rajkumar. With respect to the share of Smt. K the High Court held that her interest declared by the preliminary decree was inchoate, that she never became "possessed", 419 of any share within the meaning of s 14 of the Act and that it remained joint family property which became divisible amongst the parties proportionately to their shares. The appellants contended that the adoption of Rajkumar was invalid as no custom applicable to the Porwal sect of the jains had been established empowering a widow to adopt without the authority of her husband and that the 1/4th share of Smt. K declared by the preliminary decree had become her absolute property by virtue of s. 14 of the Act and upon her death it descended to her grandsons M and R to the exclusion of other parties. Held, that the adoption of Rajkumar was valid. A sonless Jain widow could adopt a son without the express authority of her husband. Such a custom among the Jains not domiciled in the States of Madras and the Punjab) has been recognised by judicial decisions spread over a period longer than a century. Though none of these decisions related to the Porwal sect of Jabalpur to which the parties belonged. They laid down a general custom of the jains which were applicable to the parties. The decisions proceeded not upon. any custom peculiar to any locality or to any sect of the jains but. upon general custom which had by long acceptance become part of the law applicable to them. Where a custom is repeatedly brought to the notice of the Courts, the courts may held that custom introduced into the law without the necessity of proof in each individual case. Pemraj v. Mst. Chand Kanwar, (1947) L. R. 74 1. A. 224 and Mangibai Gulabchand v. Suganchand Bhikamchand, A.I.R. (1948) P. C. 177, relied on. Sheokuarbai v.Jeoraj, A.I.R. (1921) P.C. 77, Saraswathi Ammal v. ,Jagadambal, (1953) S.C.R. 1939, Maharajah Govind nath Ray v. Gulal Chand, (1833) 5 Sel. Rep. 276, Bhagwandas Tejmal v. Rajmal Alias Hiralal Lachmindas, (1873) 10 Bom. H.C. Rep. 241, Sheo Singh Rai v. Mst. Dakho and Morari Lal (1878) L.R. 5 1. A. 87, Lakhmi Chand v. Gatto Bai, (1886) I.L.R. 8 All. 319, Manik Cha nd Golecha v. Jagit Settani, (1889) I.L.R. 17 Cal. 518, Harar nabh Parshad alias Rajajee v. Mangil Das, (1899) I. L. R. 27 Cal. 379, ManoharLal v. Banarsi Das (1907) I. L. R. 29 All. 495, Asharfi Kumar v. Rupchand, (1908) I.L.R. 30 All. 197, Rup Chand v. Jambu, Prasad (1910) I.L.R. 32 All, 2 47, Jiwaraj v. Mst. Sheokuwarbai, A.I.R. (1920) Nag. 162, Banarsi Das v. Sumat Prasad, (1936) I.L.R. 58 All. 1019 and Rama Rao v. Raja of Pittapur, (1918) L. R. 43 1. A. 148, referred to. Held, further that the 1/4th share of Smt. K declared by the preliminury decree was "possessed" by her and on her 420 death it descended to her grandsons in accordance with provisions of ss. 15 and 16 of the Act. The word "possessed" in s. 14 was used in a broad sense meaning the state of owing or having in one's power. The rule laid down by the Privy Council that till actual division of the share declared in her favour by a preliminary decree for partition of the,joint family prop" a Hindu wife or mother was not recognised as owner of that share cannot apply after the enactment of the Hindu Succession Act, 1956. Section 4 of the Act made it clear that the Legislature intended to supersede the rules of Hindu law on all rs in respect of which there was an express provision made in the Act. Gumalapura Taggina Matada Kotturuswami v. Setra Veerayya, (1959) 1 Supp. S.C.R. 968 and Pratapmull Agarwalla v. Dhanabati Bibi, (1935) L.R. 63 I.A. 33, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 130 of 61.
Appeal by special leave from the judgment and decree dated
April 25, 1959 of the Madhya Pradesh High Court in First
Appeal No. 139 of 1955.
M.C. Setalvad, Attorney-General of India, S. T. Desai, J.
B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the
appellants.
Sarjoo Prasad and G. C. Mathur, for respondents No. 1 and 2.
Ganpat Rai, for respondent No. 3.
1962. February 23. The Judgment of the Court was delivered
by
SHAH, J.-This appeal with special leave is against the
decree of the Madhya Pradesh High Court confirming the
decree of the 1st Additional District Judge, Jabalpur in
Civil Suit No. 12-A of 1952.
The dispute between the parties arose in a suit for
partition of joint family property. The parties are
Digambar Jains of the Porwal Sect and are residents of
Jabalpur which at the material time
421
was in Madhya Pradesh. The following pedigree explains the
relationship between the parties
Garibdas=Mst. Khilonabai
d. 24.7.34 (Def. 3) d.3.7.56
Gulzarilal
d. 13.4.39
Munnalal Padamchand d.10.1.36 Ramchand
(Def 1) (Def 2)
Pyaribabu widow Bhuribai Chandrani-
bahu
(Def. 4) (Def. 11) (Def. 8)
Adupted son Rajkumar
(Def. 12) adopted 26.7.52
Saheblal Ballu Nand Hiralal Ishwari
Kumar Prasad
(Plaintiff) (dead) (Def. 5) (Def. 6) (Def.7)
Rajendra Kumar Abhay Kumar
(Def 9) (Def. 10)
Saheblal son of Munnalal filed Suit No. 12A of 1952 in the
Court of the 1st Additional Subordinate Judge, Jabalpur on
June 21, 1952, for a decree of partition and separate
possession of his 1/12th share in the joint family property.
He claimed that in the property his father’s branch was
entitled to have a half share and the remaining half was
owned by
422
Ram Chand and his branch. The Additional District Judge
ordered that Khilonabai grandmother of Munnalal and Ram
chand-the wives of Munnalal and Ramchand and their sons and
Bhuribai (widow of Padamchand) and Rajkumar who claimed to
be a son of Padam Chand by adoption by Bhuribai on July 26,
1952, be impleaded as defendants to the suit.
At the trial of the suit the right of Saheblal to a share in
the property was Dot questioned-. the dispute principally
turned upon the claim made by Bhuribai and her adopted son
Rajkumar to a share in the property. Padamchand had died
before the enactment of the Hindu Womens’ Rigbt to Property
Act, 1937, and his widow could not claim by virtue of that
Act a share in the property of the family. But Bhuribai and
Rajkumar pleaded that the parties were governed in the
matter of adoption by the customary law prevalent amongst
the Jains of Central India, Madhya Pradesh, Vindhya Pradesh.
North and Western India, and Rajkumar as a son adopted by
Bhuribai to Padam Chand became a coparcener in the joint
family and entitled to a share in the property and
accretions thereto.
The validity of the adoption of Rajkumar was challenged on
many grounds, one only of which is material in this appeal.
It was submitted by the contesting defendants and Bhuribai
had no authority express or implied from her husband Padam
Chand to adopt a son and that the adoption of Rajkumar as a
son without such authority was invalid. ‘.the Additional
District Judge rejected this plea and ordered a preliminary
decree for partition and declared that the share of the
plaintiff was 1/24th, of Munnalal, his wife and 3 sons
collectively was 5/24th, of Ramchand and his sons 1/4th, of
Khilonabai 1/4th and the remaining 1/4th share belonged to
Rajkumar.
423
Against them decree, Munnalal, Ramchand, Khilonabai, wife
and sons of Munnalal and the wife and sons of Ramchand who
were defendants 1 to 10 preferred an appeal to the High
Court of Madhya Pradesh. During the pendency of this appeal
Khilonabai died on July 3, 1956 and Ramchand and Munnalal
applied to be impleaded as her legal representatives in
respect of the interest in the property awarded to
Khilonabai by the preliminary decree. By order dated
December 12, 1957, the District Judge held that the interest
of Khilonabai devolved upon the applicants by virtue of ss.
15 and 16 of the Hindu Succession Act, 1956 which was
brought into operation on June 14, 1956, and that the sons-
of Munnalal, Ramchand and Padam Chand could not take a share
in Khilonabai’s interest.
Before the High Court two questions were canvassed: (1) as
to the factum and validity of the adoption of Rajkumar, and
(2) devolution of the share of Khilonabai declared by the
preliminary decree on her death. The High Court upheld the
finding of the trial Court that Rajkumar was in fact adopted
by Bhuribai as a son to her husband on July 26, 1952, and
that amongst the Jains residing in the North West Province,
Central India, Northern India and in Bombay a widow could
adopt a son to her deceased husband without any express
authority in that behalf In so holding the High Court relied
upon the judgments of the Privy Council in Pemraj v. Mst.
Chand Kanwar and Mangibai Gulabchand v. Suganchand
Baikamcand (1). But the High Court diclined to accept the
view of the trial Court that the right of Khilonabai
declared by the preliminary decree devolved upon Munnalal
and Ramchand alone. In their view, Khilonabai’s interest
under the decree being incohate was not “Possessed” by her
within. the meaning of s. 14
(1) (1947) L.R. 74 I.A. 254.
(2) A.I.R. (1948) P.C. 177.
424
of the Hindu Succession Act, 1956, and on her death it
merged into the estate, The High Court observed : “The
result is that the interest of Smt. Khilonabai remained
incohate and fluctuating so that after her death, the
interest declared by the preliminary decree is available for
partition as joint family property and consequently ss.15
and 16 of the Hindu Succession Act are inapplicable to the
interest. As the property never became her absolute
property by virtue of s.14 of the Act, the same remained
joint family property.” Accordingly the decree of the trial
Court was modified and 1/3rd Share in the joint family
property was awarded to Rajkumar, 1/3rd to the branch of
Munnalal and the remaining 1/3rd to the branch. of Ramchand
and adjustments were made on that footing in the shares of
the plaintiff and other members of the family.
In this appeal by defendant No. 1 (Munnalal) 2 (Ramchand)
and 4 to 10, three contentions were raised : (1) in the
absence of express authority from her husband, Bhuribai
could not adopt a son, (2) that the ‘interest of Khilonabai
under the preliminary decree became her absolute property by
virtue of s.14 of the Hindu Succession Act, 1956 and on her
death it devolved upon her grandsons Munnalal and Ramchand-
defendants 1 and 2-and (3) the trial Court was in error in-
delegating to a Commissioner judicial function, such as,
ascertainment of property to be divided and effecting parti-
tion.
The third question is easily answered. The trial court
appointed a commissioner to propose a partition of joint
family property, and for that purpose the court authorised
him to ascertain the property, the debts which the family
owed and also the individual liability of the parties for
the debts. For deciding those questions the Commissioner
was empowered to record statements of the parties, frame
425
issues and to record evidence as might be necessary. The
commissioner was also directed to submit his proposals
relating to the right of Bhuribai to be maintained out of
the joint family property. This order, it appears, was
passed with the consent of all the parties. It is true that
the decree drawn up by the trial Court is not strictly in
accordance with the directions given in the judgment. But
it is manifest that the trial Judge only directed the
Commissioner to submit his proposals for partition of the
property, and for that purpose authorised him to ascertain
the property which was available for partition and to
ascertain the liability of the joint family. By so
authorising the Commissioner, the trial Court did not
abdicate its functions to the comissioner : the commissioner
was merely called upon to make proposals for partition, on
which the parties would be heard, and the Court would
adjudicate upon such proposals in the light of the decree,
and the contentions of the parties. The proposals of the
commissioner cannot from their very nature be binding upon
the parties nor the reasons in support thereof. The order
it may be, remembered was made with the consent of the
parties and no objection to the order was, it appears,
pressed before the High Court. We do not think that any
case is made out for modifying that part of the order.
The parties to this dispute are Digamber Jains of the
Porwal sect and are resident of Jabalpur. Jains have
generally been regarded as heterodox Hindus and in the
absence of special custom they are governed-by the rules
applicable to Hindus. As observed by the Privy Council in
Sheokuarbai v. Jeoraff.(1) The Jains are of Hindu origin;
they are Hindu dissenters, and although as was pointed out
by Mr. Mayne in paragraph 46 of his Hindu Law and Usages-
“Generally adhering to ordinary Hindu law, that is, the law
of the three
(1) A.I.R. (1921) P.C. 77.
426
superior castes, they recognise, no divine authority in the
Vedas and do not practise the Shradhs, or ceremony for the
dead.” “The due performance of the Shradhs, or religious
ceremonies for the dead, is at the base of the religious
theory of adoption, but the Jains; have so generally adopted
the Hindu law that the Hindu rules of adoption are applied
to them in the absence of some contrary usage x x x.” But
amongst the Jainsa custom enabling a widow to adopt a son to
her husband without express authority has been reco. gnised
by judicial decisions spread over a period longer than a
century. In Pemraj v. Musammad Chand Kanwar(1), the
Judicial Committee of the Privy Council after a review of
the case law observed : ” x x x x, in many other parts of
India” (parts other than the Provinces of Madras and the
Punjab) “it has now been established by decisions based on
evidence from widely separated districts and from different
sects that the Jains observe the custom by which a widow may
adopt to her husband without his authority. This custom is
based on religious tenants common to all sects of Jains, and
particularly their disbelief of the doctrine that the
spiritual welfare of the deceased husband may be affected by
the adoption, and though it cannot be shown that in any of
the decided cases the parties were of the Khandelwal sect,
yet in none of the cases has a distinction been drawn
between one sect and another. It is now in their
Lordship,%’ opinion no longer premature to hold that the
custom prevails generally among all Jains except in those
areas in which there are special reasons, not operative in
the rest of India, which explains why the custom has not
established itself. Mayne, in his treaties on Hindu Law and
Usage, at page 209, has lent the weight of his authority to
the proposition that among the Jains, except in the Madras
Presidency a sonless widow can adopt a son to her
(1) (1947) L.K. 74 I.A. 254.
427
husband without his authority or the consent of his
sapindas”. This view was reiterated by the Privy Council in
a case reported in Mangibai Gulabchand v.Suganchand
Bhikamchand (1).
The Attorney General for the appellants, however, contends
that there is no evidence of a custom authorising the widow
of a Porwal Digamber Jain residing in Jabalpur to adopt a
son to her husband without express authority. Counsel sub-
mitted that the observations in the two cases relating to
the custom of adoption must be restricted to the sects to
which the parties to these cases belonged, and in so far as
they purport to extend the custom to all Jain residents in
India outside Madras and the Punjab they are mere dicta and
not binding upon this Court. In Pemraj’s case the parties
belonged to the Khandelwal sect domiciled and resident in
Ajmer and in Mangibai’s case the parties were Marwari Jains
of the Vis-Oswal sect who having migrated from Jodhpur had
settled down in the Thana District of the Bombay Province,
but the opinion of the Judicial Committee expressly
proceeded upon a well-recognised custom applicable to all
Jains in the territory of India (excepting Madras and the
Punjab) and not upon proof of a restricted custom governing
the sects of Jains to which the parties belonged.
Undoubtedly, as observed by this Court in Saraswathi’ Ammal
v. Jagadamhal (2) in dealing with the quantum of proof
required to prove a family or loca I custom, ” it is
incumbent on a party getting up a custom to allege and prove
the custom on which he relies and it is not any theory of
custom or deductions from other customs which can be made a
rule of decision but only any customs applicable to the
parties concerned that can be the rule of decision in
particular case. x x x
(1). A.I.R. (1948) P.C. 177.
(2) (1953) S.C.R. 939.
428
Theory and custom are antitheses, custom cannot be a matter
mere of theory but must always be a matter of fact and one
custom cannot be deducted from another. A community living
in one particular district may have evolved a particular
custom but from that it does not follow that the community
living in another district is necessarily following the same
custom.” But the application of the custom to the parties to
this appeal does not appear to proceed upon analogies or
deductions. It governs the parties, because the custom has
become a part of the law applicable to Jains in India
(except in Madras and the Punjab) by a long and
uninterrupted course of acceptance.
A review of the cases decided by different Courts
clearlyshows that the custom is generally applicable to
Jains all over India, except the Jain domiciled in Madras
and the Punjab. The earliest case of which a report is
available is Maharaja Govindnath Bay v. Ray Chand (1)
decided by the Saddar Court Calcutta in 1933. ‘in that case
the validity of an adoption by a Jain ‘Widow of a son
without express authority from her husband was questioned.
The Court after consulting the Pandits held that by Jain law
a sonless widow could adopt a son just as her husband for
the performance of religious rites and that the section of
the vitis or priests to the adoption is not essential. In
Bhagwandas Tejmal V. Rajmal alias Hiralal
Lachmidas(2) the Bombay High Court-opined that the widow of
a Jain was a delegate either by express or implied authority
to adopt a son, but she could not delegate to another person
that authority to adopt a son to her husband after her
death. In Sheo Singh Rai v. Mussumut Dakho and Moorari Lal,
(3) decided in 1878, the Privy ‘Council affirmed the view of
the North West Provinces High Court that a sonless widow of
a Jain had the right of adoption without the permission of
her husband or the consent
(1) (1833) 5 Scl Rep 276.
(2) (1873) 10 Bom. H.C. Rep. 241.
(3) (1878) L.R. 5 I.& 87
429
of his heirs. In that case before the Subordinate Judge and
before the High Court evidence was recorded of the custom
applicable to Jains generally, in different place such as
Delhi, Jaipur, Mathura, Banaras and it was held that’ the
custom was established by evidence. The parties to the suit
were Agarwal Jains of Meerut District, but decision of the
Board proceeded upon a custom found on evidence to be common
to all Jains. In Lakhmi Chand v. Catto Bai. (1) decided in
1886, again the power of a Jain widow to adopt a son to her
deceased husband was held proved. In Manik Chand Golecha v.
Jagat Settani, (2) decided in 1889, the High Court of Bengal
upheld a custom in respect of adoption by a widow of an.
Oswal Jain. The decision of the Court did not proceed upon
any custom peculiar to the Oswal sect. In Harnabh Pershad
alias Rajajee v. Mangil Das(3) decided in 1899, it was held
upon the evidence consisting partly of judicial decisions
and partly of oral evidence that the custom that a sonless
Jain widow was competent to adopt a son to her husband
without his permission or the consent of his kinsmen, was
sufficiently established and that in this respect there was
no material difference in the custom of the Aggarwal,
Choreewal (Porwal), Khandwal and Oswal sects of the Jaim ;
and that there was nothing to differentiate the Jains at
Arrab from the Jains elsewhere. The judgment of the case
proceeded upon an elaborate examination of numerous
instances in which the custom was held established. In
Manohar Lal v. Banarsi Das(4) and in Asharfi Kumar v.
Rupchand(5) a similar custom was hold established. In the
latter case a large number of witnesses were examined at
different places and on a review of the decisions and the
evidence the Court held the custom proved. The judgment of
the Allahabad
(1) (1886) I.L.R. 8 All. 319.
(2) (1889) I.L.R. 17 Cal. 5 1 8.
(3) (1899) I.L.R. 27 Cal. 379.
(4) (1907) 1.L.R. 29 All. 495.
(5) (1908) I.L.R. 30 All.197
430
High Court in Asharfi’s case was affirmed by the Privy
Council in RupChand v. Jambu Prasad. (1) It may be stated
that the right of a Jain widow to adopt without authority of
her husband was not questioned before the Privy Council. In
Jiwraj v.. Mt. Sheokuwarbai the Court of the Judicial
Commissioner’ Nagpur held that the permission of the
husband was not necessary in the case of a Jain widow to
adopt a son. This case was also carried to the Privy
Council and the judgment was affirmed in Sheokuarbat v.
Jeoraj (3). In Banarsi Das v. Samat Prasad (4) a similar
custom was held established. The decisions in all these
cases proceeded not upon any custom peculiar to the locali-
ty, or to the sect of Jains to which they belonged, but upon
the view that being Jains, they were governed by the custom
which had by long acceptance become part of the law
applicable to them. It is well-settled that where a custom
is repeatedly brought to the notice of the Courts of a
country, the courts may hold that custom introduced into the
law without the necessity of proof in each. individual case.
(Rama Rao v. Raja of Pittapur) (5).
The plea about the invalidity of the adoption of Rajkumar by
Bburibai must therefore fail.
Khilonabai died after the Hindu Succession Act was brought
into operation on June 14, 1956. This Act by s. 2(1)(b)
applies to Hindus and also to persons who are Jains by
religion. The preliminary decree was passed on July 29,
1955, and thereby Khilonabai was declared entitled to a
fourth share in the property of the family. Section 14 of
the Hindu Succession Act, 1956 provides:
“14(1) Any property possessed by a female-
Hindu, whether acquired before or after the
commencement of this Act, shall be
(1) (1910) I.L.R. 32 All. 217.
(3) A.I.R. (1921) P.C. 77.
(2) A.I.R. (1920) Nag. 162.
(4) (1936) I.L.R. 58 All. 1019,
(5) (1918) L.R. 4 5 1.A. 148.
431
held by her as full owner thereof and not as a limited
owner.
EXPLANATION. In this sub-section ,property”
includes both movable property acquired by a
female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or
arrears of maintenance, or by gift from any
person, whether a relative or not, before, at
or after her marriage, or by her own skill or
exertion, or by purchase or by prescription,
or in any other manner whatsoever, and also by
such property held by her as stridhana
immediately before the commencement of this
Act.
(2) Nothing contained in sub-section (1)
shall apply to any property acquired by way of
gift or- under a will or any other instrument
or under a decree or order of a civil court or
under an award where the terms of the gift,
will or other instrument or the decree, order
or award prescribe a restricted estate in such
property.”
Section 15 provides:
“115 (1) The property of a female Hindu dying
intestate shall devolve according to the rules
set out in section 16,-
(a) firstly, upon the sons and daughters
(including the children of any predeceased son
or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly’ upon the mother and father;
432
(d) fourthly, upon the heirs of the father;
(e) lastly, upon, the heirs of the mother;
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female
Hindu- from her father or mother shall
devolve, in the absence of any son or daughter
of the deceased (including the children of any
predeceased son or daughter) not upon the
other heirs referred to in sub-section (1) in
the order specified therein but upon the heirs
of the father: and
(b) any property inherited by a female Hindu
from her husband or from her father-in-law
shall devolve, in the absence of any son or
daughter of the deceased (including the
children of any predeceased son or daughter)
not upon the other heirs referred to in sub-
section (1) in the order specified therein,
but upon the heirs of the husband.”
Section 16 which prescribes the order of succession and
manner of distribution among, the heirs of a Hindu female
provides by Rule
,,Among the heirs specified in sub-section (1)
of section 15, those in one entry shall be
preferred to those in any succeeding entry,
and those included in the same entry shall
take simultaneously.”
433
Counsel for Rajkumar concedes, and in our judgment he is
right in so conceding that if the share declared by the
preliminary decree in favour of Khilonabai is property
possessed by her at the date of her death, it should devolve
upon her grandsons Munnalal and Ramchand, to the exclusion
of Rajkumar adopted son of Padam Chand.
This Court in Gumalapara Taggina Matada Kotturuswami v.
Setra Veeravva (1) held that “The word “possessed” in s. 14
is used in a broad sense and in the context means the state
of owning or having in one’s power”. The preliminary decree
declared that Khilonabai was entitled to a share in the
family ‘estate and the estate being with the family of which
she was a member and in joint enjoyment, would be possessed
by her. But counsel for Rajkumar submitted that under the
preliminary decree passed in the suit for partition the
interest of Khilonabai in the estate was merely inchoate,
for she had a mere right to be maintained out of the estate
and that her right continued to retain that character till
actual division was made and the share declared by the
preliminary decree was separated to her: on her death before
actual division the inchoate interest again reverted to the
estate out of which it was carved. Counsel relied upon the
judgment of the judicial committee in Pratpamull Agarwalla
v. Dhanabati Bibi (2) in support of his plea that under the
Mitakshara law, when the family estate is divided a wife or
mother is entitled to a share.. but is not recognised as the
owner of such share until the division of the, property is
actually made,as she has no preexisting right in the estate
except a right of maintenance. Counsel submitted that this
rule of Hindu law was not affected by anything contained in
s. 14 of the Hindu Succession Act.
By s. 14 (1) the Legislature sought to convert the interest
of a Hindu female which under the
(1) [1959] 1 Supp. S.C.R. 968.
(2) (1935) L.R. 63 I.A 33.
434
Sastric Hindu law would have been regarded as a limited
interest into an absolute interest and by the explanation
thereto gave to the expression property” the widest
connotation. The expression includes property acquired by a
Hindu female by inheritance or devise, or at a partition, or
in lieu of maintenance or arrears of maintenance, or by gift
from any person, whether a relative or not, before at or
after her marriage, or by her own skill or exertion, or by
purchase or by prescription, or in any other manner
whatsoever. By s. 14(1) manifestly it is intended to
convert the interest which a Hindu female has in property
however restricted the nature of that interest under the
Sastric Hindu law may be into absolute estate. Pratap mull’s
case undoubtedly laid down that till actual division of the
share declared in her favour by a preliminary decree for
partition of the joint family estate a Hindu wife or mother,
was not recognized as owner, but that rule cannot in our
judgment apply after the enactment of the Hindu Succession
Act. The Act is a codifying enactment, and has made far
reaching changes in the structure of the Hindu law of
inheritance, and succession. The Act confers upon Hindu
females full rights of inheritance, and sweeps away the
traditional limitations on her powers of dispositions which
were regarded under the Hindu law as inherent in her estate.
She it; under the Act regarded as a fresh stock of descent
in respect of property possessed by her at the time of her
death. It is true that under the Sastric Hindu, law, the
share given to a Hindu widow on partition between her sons
or her grandsons was in lieu of her right to maintenance.
She was not entitled to claim partition. But the
Legislature by enacting the Hindu Women’s’ Right to Property
Act, 1937 made a significant departure in that branch of the
law: the Act gave a Hindu widow the same interest in the
property
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which her husband had at the time of his death, and if the
estate was partitioned she became owner in severally of her
share, subject of course, to the restrictions on disposition
and the peculiar rule of extinction of the estate on death
actual or civil. It cannot be amused having regard to this
development that in enacting 8. 14 of the Hindu Succession
Act, the Legislature merely intended to declare the rule
enunciated by the Privy Council in Pratapmulls case.
Section 4 of the Act gives an overriding effect to the
provisions of the Act. It enacts”Save as otherwise
expressly provided in this Act,-
(a) any text rule or interpretation of Hindi
law or any custom or usage as part of that law
in force immediately before the commencement
of this Act shall cease to have ;effect with
respect to ‘any matter for which provision is
made in this Act :
(b) x x x x X” Manifestly, the legislature intended to
supersede the rules of Hindu law on all matters in respect
of which there was an express provision made in the Act.
Normally a rights declared in an estate by a preliminary
decree would be regarded as property, and there is nothing
in the context in which s. 14 occurs or in the phraseology
used by the Legislature to warrant the view that such a
right declared in relation to the estate of a joint family
in favour of a Hindu widow is not property within the
meaning of s. 14. In the light of the scheme of the Act and
its avowed purpose it. would be difficult, without doing
violence to the language used in the enactment, to assume
that a right declared in property in favour of a person
under a decree for partition is not a right to property. ,
If under a preliminary decree the right in favour of a Hindu
male be regarded as property the right declared in favour of
a Hindu female must also be regarded
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as property. The High Court was therefore, in our judgment,
in error in holding that the right declared in favour of
Khilonabai was not possessed by her, nor are we able to
agree with the submission of the learned counsel for Raj
Kumar that it was not property within the meaning of s. 14
of the Act.
On that view of the case, by virtue of so. 15 and 16 of the
Act, the interest declared in favour of Khilonabai devolved
upon her sons Munnalal and Ramohand to the exclusion of her
grandson Rajkumar. The decree passed by the High Court is
therefore modified in this respect and the decree passed by
the trial Court restored. Having regard to the partial
success of the parties, there will be no order as to costs
in this appeal and in the High Court.
Appeal partly allowed