Dhanpal Singh and Others vs Mt. Janki Kuer and Others

Manohar Lall, J.—This appeal by the defendants arises out of a partition suit instituted by the widow of a deceased member of an admitted joint Hindu family. The learned Subordinate Judge has passed a preliminary decree holding that the respondent is entitled to one-third share. The principal question raised in this appeal is the interpretation and applicability of Bihar Hindu Women''s Eights to Property (Extension to Agricultural Land) Act 6 [VI] of 1942, hereinafter to be referred to as the Bihar Act.

The relationship of the parties appears from the genealogical table which is set out at page 7 of the paper-book. That is not disputed. The share of the widow of Babu Gopal Singh is also not in dispute, but what is disputed is that as Gopal Singh died in 1940 and at that time the Bihar Act was not in force, the respondent did not become entitled to any share to enable her to claim a partition. It was also argued that even if the Bihar Act is held to be retrospective, it cannot divest the defendants so as to vest one-third share in the estate in the widow.

The Hindu Women''s Eights to Property Act(Act 18 [XVIII] of 1937) and its amendment by Act 11 [XI] of 1938 were held by the Federal Court in The Patiala State Bank AIR 1941 72 (Federal Court) as inoperative to regulate succession to agricultural lands in the Governor''s provinces. In order to get over this difficulty, the Bihar Act was passed by the Governor of this province on 16-7-1942 and it was published in the Bihar Gazette of the 22nd July of the same year. The preamble to the Ant shows that its object was to extend the operation of the Hindu Women''s Eights to Property Act, 1937, and the Hindu Women'' s Rights to Property(Amendment) Act, 1938, to agricultural land in the province of Bihar. The preamble also shows that as many transactions had already taken place in the province of Bihar on the basis that women had acquired better rights under these two Acts in respect of agricultural land and as it was now established that these Acts did not operate to give them better rights in respect of agricultural land, and that in order to validate those transactions as well as to give women in future those better rights and for other purposes, it was expedient to extend the operation of those Acts to agricultural land with retrospective effect, but with certain savings. The substantial section of the Act is the second section which provides that the term ''property'' in these two Acts shall include and shall be deemed always to have included agricultural land, and then there is a first proviso, which is relevant in this case, that:

where any person who, but for this Act would have been entitled to any property, has been in possession or has made a transfer thereof, his possession till the commencement of this Act shall be deemed to be as lawful, and the transfer made by him shall be deemed to be as valid, as If this Act had not been passed.

It is obvious that the Bihar Act is expressly stated to be retrospective, and precaution has been taken to make certain savings, that is to say, if any transfer had been made in the meantime by the survivor of the deceased co-parcener, that transfer must be deemed to be valid, and further that the possession of the survivor till the commencement of the Bihar Act is rendered lawful. Upon a plain reading of this Act, it follows, in my opinion, that the respondent in the present case was entitled to one-third share in the property on the death of her husband which took place in 1940. The appellants have not made any transfer between 1940 and July 1942 which requires to be saved. Their possession, however, since 1940 up to July, 1942 is rendered lawful.

Mr. Ganesh Sharma, who appeared on behalf of the appellants, contended that the only object of the Act was to validate a transaction which may have taken place in the province on the basis of the Acts of 1937 and 1938. I do not agree with this contention, because the Act expressly states that the object is not only to validate those transactions but also for other purposes. As I have already stated, the provision of Section 2 of the Act makes it clear that the term ''property'' in the two Acts shall always be deemed to have included agricultural land.

Mr. Ganesh Sharma also argued that the object of the Act was to give women in future better rights provided by the two Acts and he, therefore, submitted that any Hindu widow in a joint family would be entitled if her husband died after July 1942 to claim a partition. Here again, the fallacy in the argument is that it ignores the words ''for other purposes'' to be found in the preamble and it also ignores the imperative provisions of Section 2 that the term ''property'' shall always be deemed to have included agricultural land. Whatever ambiguity may have lurked in the substantive part of Section 2 has been absolutely cleared up by the Legislature stating in the first proviso that the, only saving is where a transfer has been made by the survivor and that the possession of the survivor till the commencement of the Bihar Act is rendered lawful.

The provisions of the Act are so clear, that it is impossible to accept the argument of Mr. Ganesh Sharma. I would accordingly ''overrule the first objection.

Mr. Ganesh Sharma then argued that it should have been held that the defendants had ousted the widow from the date of the death of her husband, and, therefore, a simple suit for partition was not maintainable. But the short answer to this contention is that the possession of a cosharer must be deemed to be possession of all unless clear ouster is proved. In the present case, the learned Subordinate Judge has pointed out that the plea of ouster was not taken in any of the paragraphs of the written statement. Accordingly, it is clear that the plaintiff had title to one-third share on the death of her husband in 1940 and on the facts of this case, she must be held to be in joint possession with the defendants so that she is entitled to claim a partition. No other point has been raised before us. The suit giving rise to this appeal was instituted on 6-10-1942 after the Bihar Act came into force. The result is that the appeal fails and must be dismissed with costs.

Das, J.

I agree.