Raghunath Mondal & Ors vs Basanta Mandal & Ors

Hiranmay Bhattacharyya, J

The defendant Nos. 1 and 2 have preferred the instant appeal challenging the preliminary decree dated February 18, 1970 passed by the learned Subordinate Judge, Malda in Partition Suit No. 84 of 1967.

Basanta Mondal, since deceased i.e. the predecessor-in-interest of the respondent Nos. 1(a) to 1(f) filed the instant suit for partition and for separation of shares. The plaint case in a nutshell runs as follows:

One Dulal Chandra Mondal was the owner of 'Ka' schedule property. He became the owner of a portion of such property by virtue of inheritance and the remaining part was purchased by him. 'Kha' schedule property was purchased by Dulal Chandra Mondal in the benam of his wife Kanchani Mondal. Upon the death of Dulal Chandra Mondal, the properties devolved upon his three sons namely Raghunath Mondal (defendant No. 1), Chandramohan Mondal (defendant No. 2) and Jajneswar Mondal (Defendant No. 3) in equal shares each having 1/3rd share therein. The heirs of the said Dulal Chandra Mondal were in ejmal possession of the suit property.

From the income of the joint properties mentioned in 'Ka' and 'Kha' schedule of the plaint, the properties mentioned in 'Ga' schedule of the plaint was acquired by defendant No. 1 namely Raghunath Mondal while acting as the karta of the undivided family in the benam of his wife, the wife of the defendant No. 2 and in the benam of his sons. Since the properties were purchased by utilising the joint family fund, the 'Ga' schedule property is also the joint and undivided property of the plaintiff and the defendant Nos. 1 to 4. Plaintiff and the defendant Nos. 1 to 4 were in ejmal possession of the same. 'Gha' schedule properties are the separate and self-acquired properties of the plaintiff and his brothers i.e. the defendant Nos. 3 and 4. After the death of Dulal Chandra Mondal, Jajneswar Mondal died leaving behind him surviving his sons Basanta, i.e. the plaintiff and Sricharan and Judhisthir i.e. the defendant nos. 3 and 4. After the death of Jajneswar, the plaintiff and the defendants were in ejmal possession of the suit properties. Though the parties for the purpose of convenience cultivated separate portions of the joint property by way of amicable arrangement but there was no partition of the suit properties by metes and bounds between the parties. The defendants procured some documents of transfer like deed of gift and Kobala from Kanchani Mondal i.e. the widow of Dulal Chandra Mondal taking advantage of her old age. Those documents were never acted upon and Kanchani Mondal being the benamdar of her husband had no right in 'Kha' schedule properties. The plaintiff demanded partition but the defendant Nos. 1 and 2 did not pay any need to the plaintiff's demand. Hence, the plaintiff filed the instant suit claiming 1/9th share in the 'ka', 'Kha', and 'Ga' schedule property.

The defendant Nos. 3 and 4 filed a written statement supporting the plaintiff's case.

The defendant Nos. 1 and 2 contested the said suit by filing a written statement denying the material allegation contained in the plaint. It was contended in the written statement that 'Ka' schedule property excepting the properties mentioned in item Nos. 6, 17 and 18 belonged to Dulal Chandra Mondal. The land described in item No. 6 was exclusively allotted in favour of Dulal's brother Hari Prasad by way of partition. The land described in item No. 17 were acquired by the defendant Nos. 1 and 2 with their separate income after Dulal's death and the land described in item No. 18 was acquired by the defendant No. 1 alone with his own income. It was specifically stated therein that Dulal's wife Kanchani Mondal got some money from her father and she also used to rear goats and cultivated vegetables. She initially purchased item No. 5 of schedule 'Kha' and with the income from those lands she gradually purchased the other lands of 'Kha' schedule to the plaint. It was specifically denied that Kanchani was benamdar of her husband. It was further stated herein that Kanchani gifted some lands to the defendant Nos. 3 and 4. She sold a few lands and also gifted some lands in favour of the defendant Nos. 6 to 9 and 11 to 14 who are the sons of the defendant Nos. 1 and 2. At the time of her death she left only 2.5 acres out of item no. 1 of schedule 'Kha' and upon her death her sons and grandsons and daughters of two pre-deceased daughters inherited those lands. It was also stated therein that the lands described under item No. 1 of the 'Ga' schedule of the plaint was acquired by the defendant Nos. 1, 22 and 23. The remaining lands were acquired by Jashoda i.e. the wife of the defendant no. 1 and Kusum, the wife of the defendant no. 2 excepting item Nos. 4Ka, 5Ka and 25 and 26 which were the ejmal properties of the plaintiff and the defendant Nos. 1 to 4. The acquisition made by the wives of defendant Nos. 1 and 2 were made with their separate income and as such the said properties cannot be treated to be the joint family properties. It was further stated that Dulal Chandra Mondal died in 1331 B.S. and the eldest son Jajneswar died in 1336 B.S. It was further contended therein that in 1340 B.S. there was partition by metes and bounds between the plaintiff and his two brothers on one hand and the defendant Nos. 1 and 2 on the other. After such partition fresh acquisitions were made by the defendant Nos. 1 and 2 out of their separate income. The plaintiff and his brothers are in exclusive possession of lands on the basis of allotments made and as such the instant suit is bad since the properties have been already partitioned.

The defendant Nos. 22 and 23 filed a joint written statement supporting the case of the defendant Nos. 1 and 2 as regards item No. 1 of 'Ga' schedule property. The said defendants however, did not contest at the time of hearing of the suit.

The defendant Nos. 15 'Ka' and 15 'Kha' are the sons of a pre-deceased daughter of Kanchani. They filed a joint written statement supporting partly the case of defendant Nos. 1 and 2 and partly the case made out by the plaintiff. It was contended by the said defendants that the lands of schedule 'Kha' of the plaint were separate and self-acquired properties of Kanchani and she was not a benamdar for her husband. It was further contended that the defendant Nos. 1 to 4 by practicing fraud and mis-representation have obtained the deeds of gift and Kobala from Kanchani. They claimed that those lands should be partitioned amongst the heirs of Kanchani.

The learned Trial Judge by a judgement and decree dated February 18,1970, decreed the suit in preliminary form on contest with costs against the defendant Nos. 1 and 2 and exparte without costs against the rest. The plaintiff got separate possession of 1/9th share in all the properties described in schedule 'Ka', 'Kha, 'Ga' except item No. 1 and 'Gha' of the plaint after partition by metes and bounds. The defendant Nos. 1 and 2 preferred the instant appeal challenging the said preliminary decree.

Mr. Ramprakash Bannerjee, learned Advocate appearing on behalf of the appellants submitted that the learned Trial Judge erred in law by not dismissing the suit on the ground of partial partition as the plaintiff in his evidence admitted that properties standing in the names of his wife and sons have not been included in the suit. He further submitted that the plaintiff has not produced any document to prove that the properties standing in the name of his wife and sons are their separate and self-acquired properties. Mr. Banerjee, further submitted that the plaintiff purchased land vide deed being Exhibit-A-3 prior to the institution of the suit and the said land was also not included in the schedule of the plaint. He submitted that the property involved in Exhibit-A-3 is also a joint property of the parties and the suit is also bad for partial partition for not including the same in the schedule of the plaint. He also submitted that since it has been proved by evidence that Kanchani Debi had purchased the properties mentioned in schedule 'Kha' with her separate income, the learned Trial Judge erred in law by holding that Kanchani Mondal was only a benamdar and had no legal title in 'Kha' schedule property. Mr. Banerjee further submitted that Kanchani Debi died in 1369 B.S. i.e. after the Hindu Succession Act came into operation. Thus by virtue of the provisions of the Hindu Succession Act, 1956, Kanchani Debi became the absolute owner of 1/4th share of 'Ka, 'Kha' schedule properties and the deeds executed by the Kanchani Debi during her lifetime are valid to the extent of her share. Mr. Banerjee further attacked the finding of the learned Trial Judge that the plaintiff cannot be non-suited only because the land involved in Exhibit-A-3 i.e. the Kobala dated 16.9.1964 was not included in the hotchpot and submitted that in a suit for partition, all the joint properties of the parties shall be the subject matter of partition.

Mr. Sarajit Sen, the learned Advocate appearing on behalf of the respondent Nos. 1(a) to 3(g) submits that the learned Advocate appearing on behalf of the appellant did not advance any argument against the finding of the learned Trial Judge that 'Kha' schedule property are Kanchani Devi's self acquired property. In reply to the argument of Mr. Banerjee that transfer of part of 'Kha' schedule property by Kanchani Debi to the extent of her share is valid as she acquired 1/4th share in the property with the coming into operation of Hindu Succession Act, Mr. Sen submitted that Section 14 of the Hindu Succession Act has no manner of application in the instant case as Dulal Chandra Mondal died prior to the coming into force of the Hindu Women's Right to Property Act, 1937. The Act of 1937 did not have any retrospective effect and as such Kanchani Debi being the widow of Dulal Chandra Mondal did not acquire any share in the property left by Dulal Chandra Mondal by way of inheritance. Since, Kanchani did not have any title in the 'Kha' schedule property, Section 14 of the Hindu Succession Act has no manner of application in the instant case. Mr. Sen submitted that no suggestion was put to the PW1 in cross-examination that the properties standing in the names of his wife and sons were not their self-acquired property nor acquired by Basanta in the benam of his wives and sons out of his income and thus the defendants have accepted the evidence of PW1 that such properties were the self-acquired properties and not the joint property and were accordingly not included in the schedule of the land for partition. He further submitted that Basanta had money lending business and it could be that the properties in the names of his wife and sons were acquired from the separate income of Basanta from his money lending business. He further submitted that the purchase of the land involved in Kobala being Exhibit A to A/2 were purchased after the institution of the suit and therefore the question for including the same in the instant suit for partition does not arise at all. He thus submits that the defendants have failed to prove their defence case by leading evidence that some joint properties were not included in the instant suit and thus the instant suit cannot be held to be bad for partial partition. The said learned Advocate in his written notes of argument relied on a decision in the case of Suraj Mal and Ors. Vs. Babulal and Anr. Reported at AIR 1985 Delhi 95 in support of his submission that since Dulal died prior to the coming into force of the Hindu Woman's Right to Property Act, 1937, Kanchani died not acquire any interest in the properties left by Dulal upon his death. The said judgment was however, not cited by the learned Advocate for the respondent in course of his oral arguments before us.

We have heard the learned Advocates for the respective parties and have considered the materials available on record. The instant appeal arises out of a preliminary decree passed in a suit for partition. A partition suit is maintainable only if parties to the suit have unity of title and possession with regard to the properties sought to be partitioned. The defendants claim that the suit properties were partitioned by metes and bounds even prior to the institution suit and as such the instant suit for partition is not maintainable. The plaintiffs claim that the parties were possessing different portions of the suit property by way of amicable arrangement and there was no partition by metes and bounds. So it is to be ascertained at the inception as to whether there was an earlier partition of the suit properties or not.

The learned Trial Judge held that there was no partition by metes and bounds as alleged by the defendants. The said finding of the learned Trial Judge has been challenged by the defendant Nos. 1 and 2/ appellants herein and as such we have examined the pleadings and the evidences of the respective parties in order to find out as to whether the said finding is correct or not.

In order to prove that the suit properties were partitioned by metes and bounds even prior to the institution of the suit, the defendant no. 2 adduced evidence as DW1. In his Examination-in-Chief he stated that the properties left by Dulal Mondal were partitioned by metes and bounds in a salishi held in 1340 B.S. and the plaintiff and his brother got the Eastern portion of each plot, Raghunath got the middle portion and he got the western portion. The allotments were demarcated by ails. Allotments were made by measurements with rope. In cross-examination the said witness stated that the partition of the properties were made after writing on a paper and the said paper was kept in the custody of Jagadish Choudhury who was a salisdar at the time of partition. He further stated that the plaintiff and his brothers along with all the salisdars put their signature on the said paper. The said witnesses admitted in cross-examination that Girish Mondal i.e. the PW2 was also present in the said salis. He further stated in cross-examination that a sketch map was also made. The said witness further admitted that the partition paper was not shown in the settlement camp at the time of R.S. operation. It was further stated by him that all the plots have been recorded in bata dags in the names of the different parties. He also stated that all the moveable were also partitioned at that time.

The DW2 claims to be present at the time of such salis. In his examination-in-chief he stated specifically that on one day he went to the field and Basanta, one of the brother took the eastern portion, Raghunath took the middle portion and the Chandramohan took the western portion. In cross-examination the said witness admits that he does not remember which lands were allotted to whom. He further stated in his cross-examination that about 150 Bighas of land were partitioned but he only knows the lands which are near his house. He also could not give the area of those lands and could not also describe the boundaries.

The plaintiff adduced evidence as PW1. He specifically denied in his cross-examination that in 1340 B.S. all the ejmali properties were partitioned.

Though he admitted that salisdars were present but, specifically denied that any partition was effected in that salis. He also further denied recording of any partition in a rough paper.

One Girish Chandra Mondal adduced evidence as PW2. PW2 is the common relation of the parties. He is the brother-in-law of Dulal's brother Hariprasad. The DW1 in his evidence also admitted that the PW2 was present at the time of salis. The said witness in his examination-in-Chief specifically stated that only the movables were partitioned. He also stated that at the time of separation it was stated that the lands would be partitioned later on. Though the DW1 admitted in his evidence that PW2 was present at the time of salis when the ejmali property were partitioned, however, no question were put to the said witness with regard to the measurements of the properties for the purpose of allotments to the parties, recording of the fact of partition on a paper as well as putting signatures by the parties to the suit as well as by the salisdars.

The PW3 is the son of Dulal's brother Hariprasad. The said witness specifically corroborated the case of the plaintiff that no partition of the immovable properties was made. He specifically stated in his evidence that only the movables were partitioned.

The PW4 stated in his evidence that he was present at the time when the plaintiff separated in mess. He specifically stated that houses, cattle and movables were partitioned at that time and the lands were not partitioned. The fact that the said PW4 was present at the time when the plaintiffs separated in mess was however, not challenged in cross-examination. PW4 is a totally disinterested witness and there is no reason why the evidence of the said witness should not be relied upon.

In the written statement the defendant Nos. 1 and 2 specifically stated that two allotments were only made. The plaintiff and his brothers got one allotment in respect of their 1/3rd share and the defendant Nos. 1 and 2 jointly got one allotments in respect of 2/3rd share. It was further pleaded that the plaintiff and his brothers took the eastern portion of each plot while the defendant Nos. 1 and 2 jointly took the western portion of each plot. However, in the evidence, the witnesses of the defendants stated that three allotments were made. The plaintiff and his brothers took one allotments in the eastern side of each plot, Defendant no. 1 Raghunath got one allotment in respect of 1/3rd share in the middle portion of each plot and Chandramohan got one allotment in respect of 1/3rd share in the western portion of each plot. Thus, the evidence of the defendants is contrary to the pleadings as stated above.

The DW2 stated in his evidence that he went to the field on one day only for the purpose of effecting partition and making allotments to the respective parties. Though the said witness in his examination-in-Chief stated that the parties were allotted specific portions i.e. eastern, middle and western of each plots but in cross-examination stated that he does not remember which lands were allotted to whom. The said witness also stated that 150 bighas of land were partitioned but he knows only the lands which are near his house. Thus, from his evidence it does not appear that he is a witness to the partition of the entire land. Schedule 'Ka' to be plaint involves lands comprising of different Moujas and it is quite unbelievable that such huge portion of the land can be partitioned on one day. No suggestion was also put to PW1 that Ghatu Mondal i.e. DW2 was present as a salisdar at the time of partition.

The defendants have not produced the paper which according to them recorded the factum of partition as well as the allotments made to the parties. The DW1 though admitted in his evidence that he and Raghunath supervised the RS operations but also admitted in his cross-examination that the partition paper was not shown in the settlement camp during the RS operations. Thus, an adverse inference is to be drawn against the defendants for withholding the alleged document recording the partition between the parties as well as for not producing the same at the time of RS operations. The evidence of the DW1 that separate allotments of the parities were recorded in bata dags in the Revisional Settlement cannot be accepted in view of the fact that the R.S. records of rights do not show any bata dags. From the evidence of the defendant it appears that the properties were measured by rope only and on the basis of such measurement separate allotments were made. Thus, no scientific measurement was made. Furthermore the evidence of the defendant is silent as to how the valuation of each of the allotments were made and also as to how the difference in the valuation of the allotments of the respective parties, if any, were adjusted. After reading the evidence as a whole in as much as the issue with regard to the prior partition is concerned, we are of the view that the learned Judge of the Trial Court was justified in holding that there was no partition by metes and bounds but the parties were possessing separate portions of the suit property by way of amicable arrangements.

Now we have to consider as to whether the suit is bad for partial partition.

The PW1 in his evidence admitted that properties standing in the names of the wife and sons have not been included in the instant suit. On a suggestion being put to him in cross-examination, the said witness admitted that he has not filed any documents to prove that the properties standing in the name of his wife and his sons are separate and self-acquired properties.

From the Kobala dated September 16, 1964 being Exhibit-A-3, it appears that Basanta purchased a land measuring about 30 Decimals just before the institution of the suit. The said land was not included in the instant suit for partition. It is also not the case of the plaintiff that the said property is his self-acquired property. The learned Trial Judge observed that the plaintiff cannot be non suited for not including a small land in the suit for partition and the defendants can easily make an application for including the said land in the hotchpot even after the preliminary decree. It further appears from the Kobala dated October 5, 1967 that some properties were purchased in the names of the sons of the plaintiff. No document has been produced by the plaintiff to show that the properties standing in the names of his wife and sons are the self-acquired properties and not the properties purchased from the joint family fund of the parties. Thus the plaintiff failed to discharge his onus of proving that the said properties are the self acquired properties of his wife and sons. The learned Trial Judge observed that in case the defendants claim that the said land were purchased with the income from the joint properties, the defendants can apply for including the same in the hotchpot even after the preliminary decree. Thus, it is evident from the evidence on record that certain properties stand in the names of the wife and sons of the plaintiff. A property has also been purchased in the name of the plaintiff just prior to the institution of the suit. The plaintiff has failed to specify that the properties purchased by him just prior to the filing to the suit for partition as well as those purchased in the names of his sons and his wife are the self-acquired properties. The said properties should have been brought to the hotchpot and form the subject matter of the instant suit for partition. The findings of the learned Trial Judge that those properties can be included even after the passing of the preliminary decree cannot be sustained in the eye of law.

Upon consideration of the aforesaid evidences of the parties it is evident the plaintiff has not brought all the joint properties of the parties into the hotchpot of the instant suit for partition.

Now let us consider as to what should be done in a case when all the joint properties have not been made the subject matter of a partition suit. For purpose of deciding the said issue, decision in the case of Rajendra Kr. Bose - vs.- Brajendra Kumanr Bose reported at 37 CLJ 191 may be relied upon wherein it has been held as follows-

"The rule that a partition suit should embrace all the joint property is neither arbitrary nor technical; it is founded on sound and weighty reasons. If the rule were not recognised and firmly applied, multiplicity of litigation would be the inevitable result. If suits for partition were allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High court, and whether he should at all be permitted to seek the judgment of the Judicial committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It need not be disputed that there may be very special cases where the application of the rule may be justly relaxed. The case before us, however, is not of an exceptional description. The plaintiff asserts that if all the joint properties were included in the suit, it would take a long time to complete the partition. There is no substance in this contention. The two brothers have fallen out, and the subordinate Judge has found that there is great bitterness of feeling between them. There can be no room for doubt that the sooner they cease to be joint owners, the better for them. The partition may be expedited if suitable arrangements are made; for instance, there is no reason why different surveyors and valuers should not be employed to deal with the various properties; and whoever may be appointed commissioner, may have such assistance placed at his disposal that the work of partition may be speedily completed.

The result is that this appeal is allowed and the preliminary decree made by the Subordinate Judge set aside. The case will be remanded to him for retrial. The joint properties owned by the two brothers will all be included in the suit and will be dealt with in such manner as the Court may consider consistent with justice, equity and good conscience. If the plaintiff declines to have a partition of the entire joint estate, the suit will stand dismissed with costs in both Courts. The appellant is entitled to his costs of this appeal. The hearing fee will be assessed at 15 gold mohurs. The costs in the Trial Court, before and after remand, will be in the discretion of thatcourt."

(emphasis supplied)

A partition suit should embrace all the joint properties of the parties in order to avoid multiplicity of litigation. Thus we are of the view that instead of dismissing the suit, the plaintiff should be afforded an opportunity to amend the plaint for incorporating all the joint properties in the suit for partition.

It is the case of the defendants that Kanchani Mondal had separate income with which she acquired the 'Kha' schedule property. On the other hand, the plaintiffs case is that the said 'Kha' schedule property was purchased by Dulal Chandra Mondal in the benam of his wife.

The DW1 stated that Kanchani got two bighas of Mulberry lands from her father and from the income of those lands she made further acquisitions. She also tended goats and got money by selling goats. The said witness in cross-examination admitted that no deed of gift was executed in favour of Kanchani. The said witness also stated that he does remember the Khatian or dag number of the land which Kanchani's father gave to Kanchani. From the evidence of the plaintiff's witnesses, it appears that Dulal had sufficient means to make acquisition of properties the said fact was not challenged by the defendants in cross-examination. The defendants have failed to prove the fact by leading evidence that Kanchani had sufficient income to acquire the properties mentioned in 'Kha' schedule of the plaint. The learned Trial judge after considering the evidences of the respective parties held that 'Kha' schedule land were acquired out of the income of the properties of Dulal in the name of Kanchani and those properties are joint family properties. It was further held by the learned Trial Judge that plaintiff has proved his case that Kanchani was only a benamdar of Dulal in respect of the properties mentioned in schedule 'Kha' of the plaint.

Upon consideration of the aforesaid evidences we are of the view that the learned Trial Judge was justified in holding that Dulal Chandra Mondal was the real owner of 'Kha' schedule property and Kanchani Mondal was his benamdar and as such Kanchani did not have absolute right in respect of the entire 'Kha' schedule property.

The question which falls for consideration is as to whether the subsequent transferees from Kanchani acquired valid title in respect of the properties transferred by Kanchani. The learned Advocate appearing on behalf of the appellants submits that upon the death of Dulal Chandra Mondal, his widow inherited limited interest in the property which ripened into absolute ownership in view of the provisions laid down under Section 14 (1) of the Hindu Succession Act, 1956. As such he submits that the deeds executed by Kanchani in favour of the subsequent transferees shall be valid to the extent to her share in the properties as she acquired her absolute ownership in the said property after coming into force of the Hindu Succession Act, 1956. However the learned Advocate for the respondents submits that Kanchani did not acquire any interest in the property of Dulal upon his death. As such the provisions of Section 14(1) of the said Act is not applicable in the instant case.

For the purpose of deciding as to whether Kanchani had acquired any title in respect of 'Kha' schedule property upon the death of Dulal, it is necessary to recapitulate the provisions of the Hindu Law, the enactments which came into force from time to time prior to the coming into force of the Hindu Succession Act, 1956 and lastly the effect of the provisions of the Hindu Successions Act, 1956.

Admittedly the parties belong to Dayabhaga school of Hindu Law. In Para 88 of Mulla Hindu Law, 22nd Edition it is sated that the order of succession according to the Dayabhaga law. Will be as follows;

"the sapindas succeed in the following order:

(1-3) son, grandson, great grandson.

(4) widow

(5) Daughter

......................"

Thus on the failure of the heirs down to the son's grandson, the wife being inferior in pretensions to sons and the rest because she performs acts spiritually beneficial to her husband from the date of her widowhood and not, like them, from the moment of their birth, succeeds to the estate in their default. Therefore, only in the absence of son, grandson and great grandson, the widow of Dulal i.e. Kanchani would inherit.

Paragraph 176 of the Mulla Hindu Law 22nd Edition states that the estate of a Hindu Widow is an absolute one but subject to certain restrictions.

"176. Widow's estate- a widow or other limited heirs is not a tenant for life, but is owner of the property inherited by her, subject to certain restrictions on alienation and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. As stated in a Privy Council case, her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but so long as she is alive no one has any vested interest in the succession."

According to Bengal School, the only females who can inherit the property of male are 1. Widow, 2. Daughter, 3. Mother, 4. Father's Mother, 5. Father's Father's Mother. According to Bengal School every female whether she be a widow, daughter, mother, father's mother or father's father's mother, succeeds as heir to the property of a male takes only a limited estate in the property inherited by her.

The Hon'ble Supreme Court of India in the case of Jaisri Sahu vs. Rajdewan Dubey and Others reported at AIR 1962 SC 83 held that when a widow succeeds as heir to her husbands the ownership in the properties both legal and beneficial vests in her. In paragraph 4 of the said judgment the Hon'ble Supreme Court of India held thus:-

"4. Dealing next with the points mentioned in the Order of the High Court dated November 27, 1956, the first question that arises for decision is whether a sale by a widow of properties which are the subject-matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount due on the mortgage. This has been answered in the affirmative by the learned Judges of the High Court on the strength of the decision in Dasrath Singh v. Damri Singh [8 Pat LT 314 : AIR 1927 Pat 219] . There the last male holder, one Sitaram Singh, had created a usufructuary mortgage, and after his death the widow sold the property for the discharge of this debt and of certain other debts, and for meeting the marriage expenses of her daughter and grand-daughter. It was held by Das and Adami, JJ., that all these items of consideration were supported by necessity, but nevertheless the sale was not binding on the reversioners. Das, J., who delivered the judgment observed as follows:

"It is contended that under the terms of the usufructuary mortgage it would be open now to the plaintiffs to redeem that mortgage and it is pointed out that their right to redeem should not have been jeopardised by the widow by the transfer of the property to the mortgagee. In my opinion this argument is right and should prevail."

If the learned Judge intended to lay down as an inflexible proposition of law that, whenever there is a usufructuary mortgage, the widow cannot sell the property, as that would deprive the reversioners of the right to redeem the same, we must dissent from it. Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them. That, however, is not the law. When a widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her. She fully represents the estate, the interest of the reversioners therein being only spes successionis. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law. It is for this reason that it has been held that when Crown takes the property by escheat it takes it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law, vide: Collector of Masulipatam v. Cavaly Venkata [8 MIA 529] . Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume. Her powers in this regard are, as held in a series of decisions beginning with Hanooman Persad v. Musamat Babooee [(1856) 6 MIA 393] those of the manager of an infant's estate or the manager of a joint Hindu family. In Venkaji v. Vishnu [(1894) 18 534, 536] it was observed that-

"A widow like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided, ......... she acts fairly to her expectant heirs'."

The Hon'ble Supreme Court of India in the case of Gogula Gurumurthy v. Kurimeti Ayyappa, (1975) 4 SCC 485 held that no one has any vested interest in succession as long as a Hindu widow is alive. In paragraph 8 of the said judgment the Hon'ble Supreme Court of India as held thus:

"8. (II) ................. A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of wilful waste, she is answerable to no one. Her estate is not a life-estate, because in certain circumstances she can give an absolute and complete title. Nor is it in any sense an estate held in trust for reversioners. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to no one. She fully represents the estate, and, so long as she is alive, no one has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense a trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represents the whole inheritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or spes successionis. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained due to the negligence on the part of the widow he should be compensated from out of the widow's separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance, alienated the whole estate. The reversioner's right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter. It would still have been necessary for the reversioner to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. ..........................."

In the meantime the Hindu Women's Rights to Property Act, 1937 came into force. Section 3(1) provides that when a Hindu governed by Daya Bhaga School of Hindu Law died intestate leaving any property, his widow, or if there is more than one widow or his widow together, shall subject to the provisions of sub-Section (3) be entitled in respect of the property in respect of which he dies intestate to the same share as a son.

Thus, Hindu Women's Rights to Property Act, 1937 provides that the Widow takes even in the presence of male issue for the same share as a son. However such interest devolving on a Hindu Widow shall also be the limited interest known as a Hindu Woman's estate. Section 4 of the said Act provides that nothing in the Act shall apply to the property of any Hindu dying intestate before the commencement of that Act. The Hindu Succession Act, 1956 came into force with effect from 17th June, 1956. Section 14(1) of the said Act provides that any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Thus the date of death of Dulal is very much relevant for the purpose of deciding as to whether Kanchani Debi had acquired any interest in the properties left by Dulal and also as to whether the provisions of Section 14 of the Hindu Succession Act has any manner of application in the instant case.

The defendant Nos. 1 and 2 in paragraph 9 of the written statement stated that Dulal Mondal died in the year 1331 B.S. 1331 B.S. corresponds to the year 1924 as per the English Calander. The PW2 in his examination -in-chief stated that Dulal died in the year 1332-1333 B.S. 1332-1333 B.S. corresponds to the year 1925-1926 as per the English Calander. Thus, from the pleadings as well as the evidence it appears that Dulal died prior to the coming into force of the Hindu Women's Rights to Property Act, 1937. Since, Dulal died prior to the coming into force of the Hindu Women's Rights to Property Act, 1937 leaving behind male issues, Kanchani Debi did not acquire any right, title and/or interest in the properties left by Dulal. Since, Kanchani Debi did not have any right, title and interest in the properties left by Dulal on the date of coming into force of the Hindu Succession Act, 1956, the provisions contained in Section 14 of the Hindu Succession Act, 1956 cannot be applied in the instant case. Thus Kanchani Debi did not have any alienable right in the properties transferred by her in favour of the subsequent transferees. Therefore, the subsequent transferees from Kanchani Debi did not acquire any right, title and interest by virtue of the deeds executed by Kanchani in their favour.

The Judgment relied upon by the learned Advocate of the respondent in the case of Suraj Mal (supra) has no manner of application to the facts of the instant case as the question involved in the said appeal was whether the adoption by a Hindu widow was valid or not. In the said reported case the husband died leaving behind his widow, mother and brother which is not the case which we are dealing with for the present.

Thus, we are of the view that the learned trial judge was justified in holding that Kanchani had no legal title in the lands transferred by her.

For the reasons as aforesaid, we think it fit and proper to remit the matter back to the learned Trial Judge, for deciding the suit afresh in the light of the observations contained herein above.

The appeal is thus allowed thereby setting aside the preliminary decree passed by the learned Trial Judge. The case is remanded to the learned Trial Judge for retrial. The plaintiff will at liberty to apply for amendment of the plaint for including all the joint properties of the parties in the suit and upon such prayer being made the learned Trial Court shall consider and dispose of the said application in accordance with law. If the plaintiff declines to have a partition of the entire joint property, the suit will stand dismissed. In the event the plaintiff takes steps to have partition of the entire joint estate by way amendment of the plaint, the learned Trial Judge shall dispose of the suit after affording the parties an opportunity to lead further evidence.

Since the suit is of the year 1967, the learned Trial Judge is requested to dispose of the suit as expeditiously as possible and preferably within a period of one year from the date of communication of this order.

I agree.