A daughter cannot inherit property from a father who died before the Hindu Succession Act, 1956, if he left behind a widow.

JUDGMENT :

Jitendra Jain, J.

1. In Second Appeal No.593 of 1987, the following substantial question of law arose for consideration :

“Whether a daughter could acquire any right, either limited or absolute, by inheritance prior to coming into force of the Hindu Succession Act, 1956 in the property of her deceased father, who died prior to 1956, leaving behind him in addition to such daughter, his widow as well?”

2. The facts giving rise to the aforesaid substantial question of law are that one Yeshwantrao had two wives, Laxmibai and Bhikubai – Yeshwantrao had two daughters from Laxmibai, namely Sonubai and Radhabai. From his marriage with Bhikubai, he had a daughter, Champubai. Laxmibai pre-deceased her husband in 1930. Sonubai expired in 1949 while Yeshwantrao expired on 10th June 1952. Bhikubai expired on 8th July 1973 after executing a will in favour of her daughter Champubai on 14th August 1956. Radhabai, the daughter from the first marriage of Yeshwantrao filed suit for declaration that she had half share in the properties left behind by her father and sought partition of the same. The trial Court dismissed the suit holding that Bhikubai alone inherited the suit properties in view of the provisions of the Hindu Women’s Right to Property Act, 1937 (for short, “the Act of 1937”) and she became the absolute owner in 1956 in view of the provisions of the Hindu Succession Act, 1956 (for short, “the Act of 1956”). The appeal preferred by Radhabai was also dismissed thus giving rise to the Second Appeal.

3. D. B. Bhosale, J. (as His Lordship then was) was of the view that a daughter was not treated as a coparcener under the Act of 1937 and hence would not come in the scene vis-a-vis the undivided coparcenary interest that her father had and which her mother acquired under Section 3(2) of the Act of 1937. On behalf of Radhabai, reliance was placed on the decision of learned Single Judge, K.J. Rohee, J. (as His Lordship then was) in Laxman Tukaram Vs. Bendrabai Tukaram Karwate, 2005(3) Mh.L.J. 506 wherein it was held that in view of paragraph 72 in Chapter VI of Mulla’s Hindu Law and Section 3 of the Act of 1937, a daughter was entitled to one-half share in the property of her father who died prior to the Act of 1956 coming into force. Since D.B. Bhosale, J. the learned Single Judge was unable to agree with the view taken in Laxman Tukaram (supra), this reference has been made to the Division Bench which we are now called upon to answer.

4. While deciding the present reference, we have to put ourselves to the era of pre-1956 and Pre-Independence period since we are called upon to decide an inheritance right which opened on the death of a male-member of a family who died prior to 1956. We have to go back in time to decide whether during pre-1956 period, a daughter would have any inheritance right who had a widow-mother and no one else.

5. Mr. A. A. Kumbhakoni, learned Senior Counsel for Respondent Nos.1A to 1C in Second Appeal No.593 of 1987; Mr. Drupad Patil, learned counsel for Respondent No.2 in Second Appeal No.733 of 2002 and Mr. R. M. Haridas, learned counsel for Respondent Nos.1A to 1M in Second appeal No.733 of 2004 made submissions in support of the proposition that if father died prior to 1956, the daughter does not have any right of inheritance in the property of her deceased father in case father lives behind a widow/widows. Mr. Kumbhakoni, learned senior counsel and other counsels filed written submissions and case laws in support of this proposition.

6. Mr. R. S. Apte, learned Senior Counsel and Mr. S.G. Deshmukh, learned counsel for Appellants in Second Appeal No.733 of 2004 and Second Appeal No.593 of 1987 respectively made submissions in support of the proposition that the daughter has right of inheritance along with the widow by relying upon the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 (for short, “the Amendment Act of 2005”) and also relied upon the Act of 1937 in support of their s