Gokulabai Rajaram Patil vs Kantabai Damu Patil

R.M. Lodha, J.—The original defendant nos. 1, 2 and 3 have preferred this appeal against the judgment and decree passed by the Assistant Judge, Satara on 2.8.1983 affirming the judgment and decree passed by Civil Judge, Junior Division, Karad on 24.3.1981. According to the decree passed by the Courts below, the plaintiff Smt. Kantabai (since deceased) and now represented by Shri Sahebrao, has been held entitled to claim 5/8th share in the suit property and defendant nos. 1, 2 and 4 are entitled to claim 1/Sth share.

The original plaintiff Smt. Kantabai filed a suit for partition and for separate possession of the property in dispute comprising of agricultural land as well as house property described in the plaint and for separate possession of 2/3rd share in the said property with the future mesne profits. The suit properties are admittedly ancestral properties of Damu Dnyanu, plaintiff s husband who died on 22.6.1940. Damu Dnyanu and original plaintiff Smt. Kantabai had adopted Rajaram. After the death of Damu in the year 1940 all the properties were held jointly by adopted son Rajaram and original plaintiff. It appears that the dispute arose between the plaintiff Kantabai and Rajaram after the death of Damu and the original plaintiff was constrained to file a Regular Civil Suit against her son Rajaram for maintenance. The said suit was registered as Regular Civil Suit No. 199 of 1946 and in that suit the parties arrived at a compromise and thereby Rajaram agreed to pay regular maintenance to the original plaintiff. Rajaram did not discharge his obligation under the compromise decree by making the payment of maintenance regularly to the original plaintiff Smt. Kantabai Rajaram died on 9.3.1972 leaving behind the original plaintiff mother, two wives Smt. Gokulabai and Smt. Subhadrabai and four daughters Malan, Lilabai, Asha and Usha. It appears that after the death of Rajaram his wife Smt. Gokulabai and Smt. Subhadrabai and daughters got their names entered to the entire property and denied the share to the original plaintiff. That led to the filing of the present suit by the original plaintiff Smt. Kantabai against the two wives and four daughters left by Rajaram who were impleaded as defendant nos 1, 2, 3, 4, 5 and 6 respectively.

The defendant nos. 1 to 3 filed written statement and according to them the property in dispute was the self-acquired property of Rajaram and therefore the original plaintiff did not have any share therein. They set out the defence that the plaintiff was getting her maintenance regularly in accordance with the decree passed in her favour in earlier Suit No. 199 of 1946 and, there fore, she has no right of partition and after death of Damu, Rajaram was the sole surviving owner. According to defendant nos. 1 to 3, at best, the original plaintiff was entitled to get some interest in the properties as heir of deceased Rajaram and that share would not exceed 1/6th share of the property in dispute.

The defendant nos. 4 to 6 filed separate written statement and according to them, the original plaintiff had given up her right to claim partition and had only chosen to get maintenance and for that she filed Civil Suit No. 199 of 1946 in which Rajaram agreed to pay maintenance to the original plaintiff and that payment of maintenance was being made regularly.

One Suresh Vishnu Mohite claims to have purchased half share of land Gat No. 653 sold by Rajaram, for payment of debt and therefore, he was impleaded as defendant No. 7 who filed separate written statement.

The trial Court framed issues and after recording the evidence concluded that deceased Rajaram did not pay any maintenance to the original plaintiff in accordance with the compromise decree in Suit No. 199 of 1946 and that the defendant No. 4 Subhadrabai, second wife of deceased Rajaram was not entitled to get share in the estate of Rajaram as her marriage was void. The trial Court concluded that the original plaintiff was entitled to 5/8th share and passed decree accordingly on 24.3.1981. The original defendant nos. 1, 2 and 3 were dissatisfied with the judgment and decree passed by the trial Court and, therefore, preferred an appeal which was heard by Assistant Judge, Satara on 2.8.83. The appeal filed by original defendant Nos. 1, 2 and 3 was dismissed and the judgment and decree passed by the trial Court was maintained.

The genealogy which is not disputed is shown below:-

The parties have common case that earlier to the present suit, Smt. Kantabai, original plaintiff filed a suit claiming maintenance which was registered as Civil Suit No. 199 of 1946 and in that suit the compromise was arrived at between the original plaintiff Smt. Kantabai and the adopted son Rajaram and in terms of the compromise decree Rajaram was required to pay maintenance to Kantabai regularly. There is also no dispute that Damu husband of original plaintiff died on 22.6.1940 and Rajaram died on 9/3/1972.

The principal question raised by the learned Counsel for the appellant in this second appeal is that after the earlier suit for maintenance filed by the original plaintiff registered as Civil Suit No. 199 of 1946 was compromised and according to the terms of the compromise the original plaintiff was entitled to maintenance, the original plaintiff was not entitled to file the suit for partition. Mr. Mohite, the learned Counsel for the appellant would submit that in the compromise decree in lieu of maintenance the original plaintiff was granted share of 3 acres in survey No. 171 and, therefore, she could not claim any further right in the disputed property.

At the outset, it may be observed that alter the death of Damu on 20/6/1940, the original plaintiff became entitled to get his interest in the joint family property by virtue of provisions of Hindu Women''s Rights to Property Act, 1937. At that time, of course, the interest was limited but on coming into force of Hindu Succession Act, the said right and interest became absolute. Section 3(2) and 3(3) of the Hindu Women''s Rights to Property Act, 1937 read thus :

(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman''s estate, provided however that she shall have the same right of claiming partition as a male owner.

A Hindu widow under the Act of 1937 can claim a share not only in the property owned and possessed by the family at the time of her husband''s death but also in the accretions arising therefrom. The quantum or interest to which a Hindu widow is entitled u/s 3(2) of Act of 1937 is required to be determined as on the date on which she seeks to enforce partition u/s 3(3). In Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, the Apex Court observed thus :

Coming to (he last 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 u/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-section (3) of Section 3. The other view is that it has to be determined as on the dale on which her husband died, that is to say, that it is not a fluctuating interest increasing or decreasing as u result of deaths or births in the family.

The first mentioned view has been stated with approval in Mulla''s Principles of Hindu Law, (12th 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 into account when a share was allotted to heron partition amongst the sons. The share she gets u/s 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. Mukamhe ILR 1951 Bom 442 : 1951 Bom. 309 : 53 Bom. L.R. 177 Mahadu Kashiba Varnekar Vs. Gajarabai Shankar Varnekar, Shivappa Laxman and Another Vs. Yellawa Shivappa Shivagannavar and Others, Gangadhar Rout and Another Vs. Subhashini Bewa and Others, Tukaram v. Mt. Gangi AIR 1957 Nag. 28 Ramchandra v. Ramgopal AIR 1956 Nag 228 Hanuman v. Tulsabai AIR 1956 Nag 63.

In addition to these decisions our attention was also invited on Gurudayal v. Sarju AIR 1952 Nag 434 Kamal Kishore v. Harihar ILR 30: AIR 1951 Pat 645 Sabujpari Satrughan Isser AIR 1958 Pat 40 Movva Subba Rao and Another Vs. Movva Krishna Prasadam by Padyala Muthaiya and Another, Parappa alias Hanumanthappa and Another Vs. Nagamma and Others, Manicka Gounder Vs. Arunachala Gounder and Others, Keluni Dei and Another Vs. Jagabandhu Naik and Others, The Indian Leaf Tobacco Development Ltd. Vs. K. Kotayya and Others, Laxman v. Gangabai ILR (1955) M.B. 282 : AIR 1955 M.B. 138 Bhondu Ganpat Kirad and Others Vs. Ramdayal Govindram Kirad and Another, Ratan Kumari Tholia Vs. Sunder Lal Tholia and Others, .

The High Court itself referred to the decision in Parappa alias Hanumanthappa and Another Vs. Nagamma and Others, which is a decision of the Full Bench constituted for resolving an apparent conflict between the decisions in M.C. Chinniah Chettiar Vs. Sivagami Achi alias Sornam Achi and Others, and Subba Naicker Vs. Nallammal and Others, . 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 Section 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 statutory rights and that the rights of the other members of the family would be worked out on the basis that the husband died 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. The 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 those decisions her interest is a fluctuating one and is liable to increase or decrease according as there are 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 - AIR 1944 243 (Nagpur) and Siveshwar Prasad Narain Singh and Others Vs. Lata Harnarain Mal Bahal, would mean that whenever a coparcener in a Hindu joint 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-section (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 not 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 Section 14 of the Hindu Succession Act, 1956). But a coparcener has no defined interest in the joint family property and the right in the joint family property and the right which he has is to claim for partition. The quantum of his interest would be determinable 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.

In the present case, however, the share that had devolved on the original plaintiff on death of her husband Damu as well as on the date on which she filed the suit for partition remained the same and there was no fluctuation whatsoever.

The right of the original plaintiff in claiming partition in the property after the death of her husband subsequent to her claim for maintenance cannot be said to be inconsistent or impermissible under law. The widow had two remedies under the law after the death of her husband to claim viz., a share or interest that her husband had in the joint hindu family property and to claim maintenance. Invocation of one remedy i.e., claim of maintenance first by the widow cannot be said to have foreclosed her right of pursuing the other remedy later on and, therefore, the decree of maintenance passed in favour of original plaintiff in Suit No. 199 of 1946 did not preclude the widow the original plaintiff in subsequently filing the suit for partition and separate possession claiming her separate share in the property.

In Jetti Varahalamma Vs. Jetti Ammathalli Naidu (died) and Others, the Division Bench of the Andhra Pradesh High Court held thus:

Learned Counsel for the respondent invited our attention to a decision of the Oudh Chief Court wherein it was held that the effect of Act XVIII of 1937 was to take away the right of a Hindu widow to claim maintenance under the Hindu Law, The case referred, to was Misrilal v. Mt. Simaria, ILR (1948) Luck 277 : 3 D.L.R. 41. This was a suit by the widow of an undivided member of a joint family against her father-in-law and her mother-in-law. She complained that she had been driven out of the family residence and her ornaments were taken possession of forcibly. She therefore prayed, for a decree for the recovery of the ornaments or their value and also claimed a decree for maintenance at the rate of Rs. 50/- P.A. with also a house for residence. She obtained a decree for maintenance and this was questioned in appeal before the Chief Court. The learned Judges who decided this case referred to a passage in Mayne''s Hindu Law, 10th Edn. by Srinivasa Aiyangar at page 828 wherein it was stated:

Their (widows) rights of maintenance under the Hindu Law are not in terms taken away by the new Act but that must be necessary consequence if they were allowed maintenance only because they were excluded from inheritance and a share on partition.

They also referred to a passage from Golapchandra Sarkar Sastri on Hindu Law to the effect that the question of her right to maintenance out of her husband''s estate will not arise after the Act came into force. Relying on these passages the learned Judges go on to say that the right of maintenance was based upon the fact that the widow had no share or a right to partition and, therefore, when she had been given by the Act a right of partition, the right to maintenance must be deemed to have been extinguished.

We may in this connection observe that neither the passage in Mayne''s Hindu Law nor the text of Golap Chandra Sarkar Sastri on Hindu Law is capable of the construction that by the coming into force of the Act, the right of the widow to maintenance had been extinguished. They cannot be held to mean that if she chooses not to ask for partition, then the right of maintenance that she had under the Hindu Law would not be available to her; for, to put such a construction upon these passages would amount to interpreting the provisions of the Act in a way against the express intention of the Act. The new enactment was passed, as has been already observed, for the purposes of conferring better rights on a Hindu Widow, which meant that instead of the widow getting a mere maintenance from her husband''s estate, she could claim a share in the same.

If for some reason she is not in a position to ask for a share, surely her right to claim maintenance from her husband''s estate by reason of her being the widow of a member of a co-parcenary, cannot be said to have been lost, We feel that the learned Judges of the Oudh Chief Court only meant to lay down that the widow cannot be a maintenance-holder in respect of the very property which she owns for her life, If the learned Judges meant anything more than this i.e. to say that regardless of the fact as to whether she had a share in the estate of her husband or not, she would be disentitled to maintenance by reason of the new enactment, with great respect we beg to differ.

So long as there is no provision in the Act expressly or by implication taking away the right of maintenance, it could not be argued with any force that the right to partition was in substitution of the right to be maintained. A decision of the Orissa High Court also was brought to our notice in Tirthabasi Ghose and Others Vs. Bhuyani Trinayani Dasi, . In that case some of the properties over which the widow had a charge for her maintenance passed out of the family and in these circumstances it was held by the learned Judge, Jagnnath Das, J., that there was no scope to say that the right to maintenance out of certain properties which passed out of the family should be held to have vanished.

The widow''s right of maintenance and her right to partition are distinct and it cannot be said that right of maintenance which a widow could have claimed has been substituted by right to partition by the Act of 1937. In my considered opinion there is no impediment for widow to claim partition even if a decree for maintenance has been passed in her favour. Right of claiming partition available to her under law cannot be foreclosed either by providing maintenance or when a decree for maintenance has been passed in favour of the widow. The contention raised by the learned Counsel for the appellant therefore has no merit that on passing of the decree of maintenance in the earlier Suit No. 199 of 1946, the original plaintiff Kantabai could not have claimed partition.

Mr. Mohitc, the learned Counsel for the appellant then argued that the original plaintiff Smt. Kantabai could not have claimed the share devolved on her regarding the interest her husband had as well as the share as mother on the death of Rajaram. According to him the original plaintiff Kantabai could not claim share as widow of Damu as well as mother of Rajaram.

I do not find any merit in the contention of the learned Counsel for the appellant. On the death of Rajaram, the heirs specified in Class I of the Schedule appended to Hindu Succession Act, 1956 would succeed his estate. Rajaram was survived by his daughters, widow and mother and, therefore, all of them being specified as heirs in Class I would be entitled to inherit share of Rajaram. On the death of Damu, the original plaintiff and Rajaram had equal share i.e. each of them had half share in the property in dispute. On the death of Rajaram, the half share which he had would be divided equally between his one of the widows i.e. defendant No. 1, two daughters i.e. defendant No. 2 and 3 and the original plaintiff-mother i.e. each one of them shall have 1/4lh share in half share of Rajaram i.e. 1 /8th share in the entire property. Thus, the original plaintiff is entitled to half plus 1/8th share which comes to 5/8th share. The Courts below rightly therefore hold that plaintiff was entitled to 5/8th share.

The appeal therefore has no force and is dismissed with no order as to costs.