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PATNA HIGH COURT
B.N.Rai and S.C.Misra JJ.
Mt.Asarfa Kuer
Versus
Bhuneshwar Rai
Appeal from Original Decree No. 382 of 1948 ;
Decided On : JANUARY 10, 1958
HINDU LAW - SUCCESSION - HINDU WOMEN'S RIGHTS TO PROPERTY ACT (18 OF 1937), SEC. 3(1) - MEANING OF "SEPARATE PROPERTY" - WHETHER PROPERTY HELD BY SOLE SURVIVING COPARCENER IS SEPARATE PROPERTY - WHETHER WIDOW OF PREDECEASED SON ENTITLED TO INHERIT UNDER PROVISO TO SEC. 3(1) - WHETHER EXISTENCE OF WIDOW OF PROPOSITIUS A CONDITION PRECEDENT TO RIGHT OF DAUGHTER-IN-LAW.
Fact of the Case:
The appellant, Mt. Asarfa Kuer, widow of Sukhdeo Rai, was defendant No. 3 in the suit giving rise to this appeal. The suit was brought by Bhuneshwar Rai, son of Ramadhar Rai, respondent No. 2, claiming one-sixth share in the joint family properties and for carving out a separate takhta in respect thereof. The genealogy on which he relied is as follows: PARGAS RAI | __________________________| __________________________ | | | | Halkhori Rai Isar Rai Parsuram Rai | | | | Sukhdeo Rai Ramadhar Rai Gaya Rai | | | | Mt. Asarfa Kuer Bhuneshwar Rai Mathura Rai
Finding of the Court:
1. The finding of the Court below that Halkhori Rai died in a state of jointness with defendant No. 1 Ramadhar Rai, in 1945, as also the finding that Sukhdeo Rai, husband of the appellant, died long before the coming into force of the Hindu Womens Rights to Property Act (Act 18 of 1937) are erroneous. 2. Halkhori Rai and Ramadhar Rai had separated, and Halkhori Rai died in a state of separation from Ramadhar Rai. 3. The share of Halkhori Rai in the joint family property would be his separate property and not coparcenary property. 4. The appellant, as the widow of Sukhdeo Rai, is entitled to one-third share in the family properties to which her father-in-law Halkhori had a right.
Issues: 1. Whether Sukhdeo Rai, husband of the appellant, died about 1942 or so, as she alleged, or he died long before the passing of the Hindu Womens Rights to Property Act. 2. Whether, in fact, Halkhori Rai died in a state of jointness with Ramadhar Rai as alleged by him or he died in a state of separation from him as alleged by the plaintiff, defendant No. 2 Mathura Rai and the appellant-defendant No. 3. 3. Whether the share of Halkhori Rai in the joint family property would be his separate property or would continue to be treated as coparcenery property.
Ratio Decidendi: 1. The expression "separate property" in Sec.3(1) of the Hindu Womens Rights to Property Act, 1937, must be taken to mean property which the intestate held separately in the sense that he held it without the participation of other coparceners. 2. The sole surviving coparcener of a Mitakshara joint Hindu family has not merely an interest in the property, but holds the property exclusively or separately whatever its character. 3. The widow of a predeceased son would inherit as a son under the proviso to Sec.3(1) of the Hindu Womens Rights to Property Act, 1937, and in that view of the matter it is immaterial whether the widow of the propositus would be alive or dead when the succession opens.
Final Decision: Appeal allowed, judgment and decree of the Court below set aside in so far as the share of the appellant is concerned, and it must be held that she is entitled to one-third share in the family properties to which her father-in-law Halkhori had a right, and her share also must be carved out in the partition proceedings and incorporated in the final decree. In the circumstances of the present case, however, parties will bear their own costs.
S.C.Misra, J.
1. The appellant, Mt. Asarfa Kuer, widow of Sukhdeo Rai, was defendant No. 3 in the suit giving rise to this appeal. The suit was brought by Bhuneshwar Rai, son of Ramadhar Rai, respondent No. 2, claiming one-sixth share in the joint family properties and for carving out a separate takhta in respect thereof. The genealogy on which he relied is as follows:
PARGAS RAI
|
__________________________|__________________________
| | |
Halkhori Rai Isar Rai Parsuram Rai
| | |
Sukhdeo Rai Ramadhar Rai Gaya Rai
| | |
Mt. Asarfa Kuer Bhuneshwar Rai Mathura Rai
His case was that Halkhori Rai, Isar Rai and Parasuram Rai, the three sons of Pargas Rai, were separate from one another and one third share of each of the three branches had been clearly defined, but no partition by metes and bounds had been effected. His father, defendant No. 1, Ramadhar Rai, had kept a concubine from whom he had a son. He was evil minded and had turned dishonest. He was out to ruin the family properties and benefit his son, Rambachan Rai, from his concubine.
This embittered the relations between him and his father Ramadhar Rai and, accordingly, he requested him (Ramadhar) to separate his share. He also asked the other defendants to effect partition, but they were indifferent to his request, so that he had to institute a suit for partition of his share. Mathura Rai, son of Gaya Rai and grandson of Parasuram Rai, supported his case. He was likewise supported in his claim by defendant No. 3 Asarfi Kuer (Asarfa Kuer). Defendant no. 1, father of the plaintiff, alone controverted the main allegations of the plaintiff. He pleaded that there was already a partition of the joint family properties amongst the three branches of the sons of Pargas Rai by which the properties mentioned in Schedule Ka of his written statement were allotted to the share of Mathura Rai, defendant No. 2, and the remaining two thirds share was left joint. Halkhori Rai, the father-in-law of Asarfa Kuer, did not separate him. He continued to be in possession and occupation of the properties of his share as well as the share of Halkhori Rai. Defendant No. 3 Asharfa Kuer, had no right to the property of Halkhori.
He stated further that the plaintiff was a misguided youngman under the influence of Mathura Rai, defendant No. 2, and was set up by him to harass him. He married a second wife after the death of the mother of the plaintiff and Rambachan Rai was born from her. After several years of that marriage, the plaintiff and his wife picked up quarrel with Rambachans mother and accordingly he had to be separated. In 1943, the plaintiff also separated from his father, defendant No. 1, and his share was also carved out, which is mentioned in schedule Kha to his written statement. Hence there was no unity of title and possession between the parties, and as such the suit was bound to be dismissed.
2. The learned Subordinate Judge, First Court, Arrah, heard the suit. He held that there has been no partition by metes and bounds of the joint family properties among the members of the family and to that extent the plea of Ramadhar Rai was disbelieved. He ordered that Mathura Rai, defendant No. 2, was entitled to his one-third share in the immovable properties, excepting the residential house. The plaintiff was held entitled to one-sixth share in respect of all the properties except a sum of Rs. 300.00 covered by a headnote in favour of Ramadhar Rai.
The learned Subordinate Judge, however, held further that the appellant, Mt. Asarfa Kuer, was not
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