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HIGH COURT OF CALCUTTA
P. C. Mallick
RATAN KUMARI THOLIA - Appellant
Versus
SUNDER LAL THOLIA - Respondent
Suit 969 Of 1958
Decided On : JUNE 17, 1959
HINDU LAW - SUCCESSION - COPARCENARY PROPERTY - WIDOW'S RIGHT TO INHERIT - HINDU WOMEN'S RIGHT TO PROPERTY ACT, 1937 - HINDU SUCCESSION ACT, 1956 - APPLICABILITY - DOMICILE OF HUSBAND - RELEVANCE.
Fact of the Case:
The plaintiff, a widow of a coparcener, filed a suit for partition of properties belonging to a Mitakshara Coparcenary. The husband died in 1944. The parties agreed that the issue of whether the plaintiff had any share in the immovable and movable properties would be tried first, and the issue of jurisdiction would be tried later. The plaintiff's husband was admittedly a member of the coparcenary. The immovable properties consisted of fifteen items at Jaipur, one at Bombay, one at Mussourie, and three at Calcutta. The movables consisted of gold ornaments, ornaments set with precious stones and pearls, gold bars, and gold and silver wares. There were accounts in five banks, one of which was with the Chartered Bank, New Delhi. The other accounts were all with banks at Jaipur. There were three businesses, of them two Baijilal Tholia and Sons with its branches and Tarachand Vijay Kumara were carried on at Jaipur. The third business Shanti Vijay was carried on at Delhi.
Finding of the Court:
1. The Hindu Women's Right to Property Act, 1937, and the Hindu Succession Act, 1956, apply to the instant case, and the plaintiff is entitled to inherit her husband's share in the coparcenary property. 2. The rule of domicile has no bearing on the question of construction of the Hindu Women's Right to Property Act, 1937, and the Hindu Succession Act, 1956. 3. The widow under Section 3 (3) of the Hindu Women's Right to Property Act, 1937, shall get limited interest in the properties left by her deceased husband.
Issues: 1. Whether the plaintiff has any share in the immovable and movable properties? 2. If so, what is the nature and extent of such share?
Ratio Decidendi: 1. The Hindu Women's Right to Property Act, 1937, and the Hindu Succession Act, 1956, are applicable to all properties, movable and immovable, situate within India, no matter whether it belongs to a deceased Hindu who is a citizen or a foreigner, or whether he had Indian or non-Indian domicile. 2. The language of the Act indicates that it gives an extended right to a Hindu widow in respect to all properties of her husband, and the Indian Legislature was competent to legislate in respect to all properties within the territory. 3. The widow under Section 3 (3) of the Hindu Women's Right to Property Act, 1937, shall get limited interest in the properties left by her deceased husband.
Final Decision: The plaintiff has a share in the immovable properties situate within the Indian Union, except those situate at Jaipur. The same answer with respect to movables and businesses. Whether she acquired absolute title in the said properties can only be determined on the determination on evidence of the question that the conditions laid down in Section 14 of the Hindu Succession Act have been complied with or not.
( 1 ) THIS is a suit for partition of properties belonging to a Mitakshara Coparcenary. The plaintiffs husband was a member of this coparcenary. The husband died in 1944. By an order passed by G. K. Mitter, J. the two following issues were set down for trial as preliminary issues. 1. (a) (i) Has the plaintiff any share to the immovable properties? (ii) Has the plaintiff any share in the movable properties? (b) If so, what is the nature and extent of such share? 2. Has the plaintiff any right to claim maintenance? If so, out of what estate?
( 2 ) MR. Choudhury appearing for the plaintiff suggested that the hearing of the second issue be deterred and the first issue be decided first. Mr. Deb appearing for the defendants suggested that over and above the two above issues, let a third issue be framed and tried as to whether the court has jurisdiction to try this suit. Ultimately it was agreed by the parties that the issue No. 1 be tried first and the second issue as also the issue as to jurisdiction should be tried after the determination of issue No. 1.
( 3 ) MR. Deb submitted that parties will only be at issue if the parties are domiciled in Jaipur which till 1947 was a foreign state. If not the position would be different and the issue No. 1 would not arise for decision in this suit. He, therefore, called upon the plaintiff to admit the fact that the parties had Jaipur domicile and that this admission may be recorded. Mr. Choudhury submitted that he should not be called upon to make the admission at this stage and suggested that this issue be tried on the footing that the parties had Jaipur domicile. Mr. Deb accepted this suggestion. I am, therefore, now deciding issue No. 1 only and I am deciding this issue on the footing that parties had Jaipur domicile. If the parties do not agree later that they were and are of Jaipur domicile, that issue will have to be decided later.
( 4 ) THE Tholia family appear to be a very prosperous family and the Schedule of Properties--movable, immovable and businesses--is a very impressive schedule. The immovable properties consist of fifteen items of properties at Jaipur, one at Bombay, one at Mussourie and three at Calcutta. The movables consist of gold ornaments as also ornaments set with precious stones and pearls, gold bars and gold and silver wares. It is alleged that there are accounts in five banks, one of which account is with the Chartered Bank, New Delhi. The other accounts are all with the banks at Jaipur. There are three businesses, of them two Baijilal Tho-lia and Sons with its branches and Tarachand Vijay Kumara are carried on at Jaipur. The third business Shanti Vijay is carried on at Delhi. To sum up, most of the immovable properties, business and movables are at Jaipur but there are substantial properties--movable, immovable and businesses outside Jaipur and within territories formerly known as British India.
( 5 ) THE plaintiff's husband Harakchand was admittedly a member of the coparcenary. He died in November 1944. The question is whether the widow of a coparcener who has died in 1944 can claim a share in the coparcenary pro-perty and a partition. Apart from the Statutes, viz. , The Hindu Women's Right to Property Act (Act XVIII) of 1937. The Hindu Women's Right to Property Act (Act XXXVIII) passed by the Jaipur Legislature and the Hindu Succession Act (Act XXX) of 1956 the plaintiff as a widow of a deceased coparcener can hardly claim apart from maintenance any title or interest in the coparcenary property. This can and indeed has not been disputed. Mr. Choudhury conceded that if the Statutes do not cover the case, his client will be out of court. It is equally clear that if the Statutes apply and the plaintiffs case is covered by the Hindu Succession Act and the Hindu Women's Right to Property Act, then the plaintiff would succeed at least in part.
( 6 ) THE case has been argued with remarkable ability and fairness on either side and I record my apprec
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