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PATNA HIGH COURT
H.Mahapatra and G.N.Prasad JJ.
Triloki Mandar
Versus
Dukhni Devi
Appeal from Original Decree No. 11 of 1960 ;
Decided On : JULY 16, 1965
HINDU SUCCESSION ACT, 1956 - SECTION 14 - POSSESSION OF PROPERTY - WIDOW'S INTEREST IN JOINT FAMILY PROPERTY - INTERPRETATION - EFFECT OF NON-EXERCISE OF RIGHT OF PARTITION - HINDU WOMEN'S RIGHTS TO PROPERTY ACT, 1937 - SECTION 3(2) - JOINT POSSESSION - FULL OWNERSHIP - DISRUPTION OF JOINT FAMILY - SURVIVING HALF THEORY - LEGAL STATUS OF WIDOW - ACQUISITION OF ABSOLUTE RIGHTS - DISTINCTION BETWEEN 'PROPERTY' AND 'INTEREST IN PROPERTY' - INCLUSION OF WIDOW'S INTEREST IN 'PROPERTY' - MAINTAINABILITY OF SUIT FOR PARTITION - LIMITATION.
Fact of the Case:
A suit for partition of joint family properties was filed by the daughter of a deceased Hindu widow, claiming one-fourth share in the properties. The defendants, the sons of the widow's brother-in-law, resisted the claim, contending that the widow had no interest in the properties since she had not exercised her right of partition during her lifetime and that the suit was barred by limitation.
Finding of the Court:
The court held that the widow had acquired the same interest in the joint family properties as her husband had at the time of his death under Section 3(2) of the Hindu Women's Rights to Property Act, 1937, and that she was in possession of such interest until her death, even though she did not exercise her right of partition. The court further held that the widow's interest was 'property' within the meaning of Section 14 of the Hindu Succession Act, 1956, and that she had acquired absolute rights over it upon the commencement of the Act. The court also held that the suit for partition was maintainable and that there was no question of limitation in the absence of any pleading or proof of ouster on the part of the defendants.
Issues: 1. Whether the widow had acquired any interest in the joint family properties upon the death of her husband. 2. Whether the widow's interest in the properties was 'property' within the meaning of Section 14 of the Hindu Succession Act, 1956. 3. Whether the widow had acquired absolute rights over her interest in the properties upon the commencement of the Hindu Succession Act, 1956. 4. Whether the suit for partition was maintainable. 5. Whether the suit was barred by limitation.
Ratio Decidendi: 1. The court interpreted Section 3(2) of the Hindu Women's Rights to Property Act, 1937, to hold that a Hindu widow acquired the same interest in the joint family properties as her husband had at the time of his death, even though she did not become a co-parcener and the interest did not devolve upon her by survivorship or inheritance. 2. The court interpreted Section 14 of the Hindu Succession Act, 1956, to hold that the term 'property' included both movable and immovable property acquired by a female Hindu in various ways, including by inheritance, and that the widow's interest in the joint family properties fell within this definition. 3. The court held that the widow had acquired absolute rights over her interest in the properties upon the commencement of the Hindu Succession Act, 1956, by virtue of Section 14(1) of the Act. 4. The court held that the suit for partition was maintainable since the widow had acquired an interest in the properties and was in possession of them until her death, and there was no evidence of ouster by the defendants. 5. The court held that the suit was not barred by limitation since there was no pleading or proof of ouster on the part of the defendants.
Final Decision: The court dismissed the appeal filed by the defendants, upholding the preliminary decree for partition passed by the trial court.
G.N.Prasad, J.
1. This appeal has been preferred by defendants first party and is directed against the preliminary decree in a suit for partition of joint family properties.
2. The parties belong to the family of one Ramesar Mandar who left behind three sons--Darbari, Banwari and Triloki. The appellants are Triloki and his sons. Dukhni (plaintiff) and Ratia (defendant second party) are the daughters of Banwari, whose widow was Mossomat Bhago. It is common ground that Darbari separated from the other two branches of the family sometime in 1939, and that Banwari and Triloki continued to remain joint.
3. The case set up by the plaintiff was that Banwari died in the year 1939 in state of jointness with Triloki and his sons, and his widow Mossomat Bhago died on the 29th June 1958. The plaintiff, therefore, claimed one fourth share in the joint family properties belonging to Banwari and Triloki, and the instituted the present suit for partition on the 23rd July 1958, implcading her sister Ratia as defendant second party.
4. Defendants first party resisted the Claim for partition on various grounds. Their case was that Banwari died in 1935. and not in 1939, and as such Mossomat Bhago acquired no interest in the joint family properties, except that of receiving maintenance which she was getting all along until her death in June 1958 Therefore, no interest in the joint family properties passed to her daughters (Dukhni and Ratia). Consequently the suit for partition was not maintainable. It was also barred by limitation. The further defence put forward was that some of the items of properties sought to be partitioned were not liable to be partitioned since they were the separate properties of the defendants, first party.
5. Upon a consideration of the evidence adduced by the parties the trial Court negative the defendants case and held that Banwari had died in 1939. as alleged by the plaintiff The trial Courl further found that all the items of properties mentioned in the plaint were joint family properties and as such liable to be partitioned. Upon these findings, the trial Court has held that -/8/ annas share in the suit properties belongs to defendants first party and in the remaining /8/ annas, half share belongs to the plaintiff and the other half share belongs to defendant second party A preliminary decree for partition of the suit properties in accordance with such shares having thus been passed, the defendants first partv have come up to this Court in appeal.
6. Mr. R.S. Chatterji for the appellants did not dispute the correctness of the findings of the trial Court as to the year of Banwaris death and as to the joint character of all the tems of the suit properties. Learned counsel, however, contended that even upon the footing that Banwari had died in 1989, it must be held that the suit for partition was not maintainable and should have been dismissed.
According to the learned counsel, Mossomat Bhago was, no doubt, entitled to the benefits of the Hindu Womens Rights to Property Act, and under. Sec.3(2) of the said Act, she acquired the same interest in the joint family properties which her husband Banwari had. By virtue of Sec.3(3) of the said Act, she had a right of claiming partition of the joint family properties but she was not a co-parcener and, therefore, the co-parcenary interest in the properties passed in its entirety to Triloki by survivorship. Mossomat Bhago, however, did not exercise her right of partition during her lifetime and, therefore, there was no disruption of the joint status and Bhago did not come in possession of the interest which had devolved upon her under the Hindu Womens Rights to Property Act. In this view of the matter, the suit properties were not possessed by Mossomat Bhago within the meaning of Sec.14 of the Hindu Succession Act, 1956, either on the 17th June 1956, when the Act came into force or at the time of her death in June 1958. The suit properties accord ingly continued to remain
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