2013 Supreme(Bom) 387

In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Bhagirathibai w/o Chandrabhan Nimbarte & Another
Versus
Tanabai w/o Ramchandra Zanzad (Dead), through legal representatives: & Others
Second Appeal No.291 of 1995 with Second Appeal No.270 of 1995
Decided On : 18-02-2013

Headnote:Joint Family and Hindu coparcenary.

       A Hindu joint family may consist of a single male member and widows of deceased male members, whereas a Hindu coparcenary not only consists of father and son but also grandsons, great grand sons of holder of joint family property for time being. - In a case a Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be member of her father’s family on marriage and becomes a member of her husband’s family. A joint or undivided Hindu family may consist of a single male member and widows of deceased male members. The existence of at least one male member is essential for constituting a joint family with other members. A Hindu coparcenary is a much narrower body than the Hindu joint family.

       The coparcenary not only consists of father and sons, but also grandsons, great grandsons of the holder of the joint family property for the time being. It includes only those persons who acquire by birth an interest in the joint or coparcenary property.

       If a Hindu inherits the property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited and the coparcenary consists of a father and a son.

       Even a wife, though she is entitled to maintenance out of her husband’s property and has, to that extent, an interest in his property, is not her husband’s coparcener, nor is a mother a coparcener with her son, neither a mother-in-law with her daughter-in-law.

       In the present case, after the death of "V" on 23.1.1934, his undivided interest in the coparcenary property devolved upon the sole coparcener "C" by survivorship. Hence, "C " became the absolute owner of the entire property, and neither "R ", the widow of "V " and the mother of "C ", nor "T ", the daughter of "V " and the sister of "C", acquired any right in the coparcenary property. Both the Courts below have held that after the death of "V " on 23.1.1934, his widow "R " was not entitled to any share in the property of "V " as per the position prevailing prior to coming into force of the Hindu Women’s Right to Property Act, 1937. Hence, the said view cannot be faulted with.

       Hindu Succession Act, 1956 - Section 14(1) - Applicability of.

       Where a male Hindu died prior to commencement of Act, 1956, Act has no application. - In the present case, deceased died before coming into force of the said Act, and hence his mother ’R ’ did not possess any vestige of title. Mere fact that she was in possession of the suit property along with the widow of deceased, after 1952, was not sufficient to attract the provisions of Section 14 of the Hind Succession Act. The Section is not intended to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser, a mere right of maintenance without actual acquisition in any manner is not sufficient to attract Section 14(1) of the Hindu Succession Act, 1956. The Appellate Court committed an error of law in holding that wife of deceased became owner of half portion of the suit property by virtue of Section 14(1) of the Hindu Succession Act, 1956. Succession Act, 1956.

       Hindu Women’s Right to Property Act, 1937 - Sections 3 and 4 - Entitlement of widow.

       Widow of deceased, not entitled to even a limited interest in property left by deceased died intestate. - As per the provision of Section 3(1) of the said Act, hen a Hindu governed by the Mitakshara School of Hindu Law dies intestate leaving separate property, his widow shall, subject to the provision 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. In the present case, there was no partition between Vithoba and his son Chandrabhan prior to the death of Vithoba on 23.1.1934. Hence, though Vithoba died intestate, he did not leave any separate property. It was only a coparcenary property in the hands of the son Chandrabhai after the death of Vithoba. Hence, Section 3 of the said Act will not be attracted so as to make Radhabai entitled to even a limited interest in the property in question.

       In the decision of the Apex Court in the case of Ramvishal (Dead) by LRs. and others v. Jagannath and another, (2004) 9 SCC 302, has been held that Section 4 of the Hindu Women’s Right to Property Act, 1937 clearly lays down that the provisions of the said Act would not apply to the property of any Hindu dying before the commencement of the said Act. Since Vithoba died before coming into force of the said Act, Section 3 of the said Act would even otherwise not confer any right upon Radhabai.

       Now coming to the substantial question of law framed in these appeals, Tanabai was the sister of Chandrabhan. The position of Tanabai was in no manner different from the position of her mother Radhabai in a situation of the present case prevailing prior to coming into force of the Hindu Succession Act, 1956. She had no right or interest in the coparcenery property, which devolved upon Chandrabhan. Upon death of Chandrabhan, Bhagirathibai became the absolute owner of the suit property, and Tanabai, the sister of Chandrabhan, did not acquire any right in the estate of Chandrabhan, Both the Courts below have, therefore, committed an error of law in holding that Radhabai had a right in the estate left by Chandrabhan. Similarly, the Courts below have also committed an error of law in holding that Tanabai was having any share in the estate either by herself or through her mother Radhabai. The substantial question of law is, therefore, answered accordingly.