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HIGH COURT OF CALCUTTA
Mallick
HIRALAL ROY CHOUDHURY - Appellant
Versus
KUMUD BEHARI ROY CHOUDHURY - Respondent
Suit 2565 Of 1953
Decided On : MAY 06, 1957
HINDU SUCCESSION ACT, 1956 - SECTION 14 - SECTION 8 - PROPERTY OF A FEMALE HINDU TO BE HER ABSOLUTE PROPERTY - PROPERTY OF A MALE HINDU DYING INTESTATE - SUCCESSION TO THE PROPERTY OF A HINDU WIDOW WHO DIED AFTER THE ACT CAME INTO FORCE - WHETHER THE HINDU SUCCESSION ACT, 1956 APPLIES - WHETHER THE PROPERTY ACQUIRED BY A HINDU WIDOW UNDER A PRELIMINARY DECREE IS AN ABSOLUTE ESTATE OR A RESTRICTED ESTATE - WHETHER THE RIGHT OF SUCCESSION TO THE PROPERTY OF A HINDU WIDOW WHO DIED AFTER THE ACT CAME INTO FORCE IS GOVERNED BY THE HINDU SUCCESSION ACT, 1956 OR BY THE PREVIOUS STATE OF LAW.
Fact of the Case:
A suit for partition of the estate left by a Hindu male who died intestate in 1922 was instituted in 1953. A preliminary decree for partition was passed in 1956, declaring the shares of the parties and appointing a Commissioner of Partition. The preliminary decree declared the share of the Hindu widow of the deceased as a Hindu widow's estate to be held by her during her natural life. The Hindu Succession Act, 1956 came into force on 17-6-1956. The Hindu widow died in 1957. Her daughter filed an application for addition of herself as a party to the partition suit and for determination of her share in the property in suit, claiming that under Section 14 of the Hindu Succession Act, 1956, her mother became entitled to her share in absolute title on the date of the Act coming into force.
Finding of the Court:
The court held that the Hindu Succession Act, 1956 applies to the instant case and that the daughter of the Hindu widow is entitled to inherit her mother's share in the property in suit. The court further held that the preliminary decree passed in the partition suit did not confer an absolute estate on the Hindu widow, but only a restricted estate, and that therefore Section 14(1) of the Hindu Succession Act, 1956 did not apply to the case. The court also held that the right of succession to the property of the Hindu widow is governed by the Hindu Succession Act, 1956 and not by the previous state of law.
Issues: 1. Whether the Hindu Succession Act, 1956 applies to the instant case? 2. Whether the property acquired by a Hindu widow under a preliminary decree is an absolute estate or a restricted estate? 3. Whether the right of succession to the property of a Hindu widow who died after the Act came into force is governed by the Hindu Succession Act, 1956 or by the previous state of law?
Ratio Decidendi: 1. The Hindu Succession Act, 1956 applies to the instant case because the succession to the property of the Hindu widow opened on the date of her death, which was after the Act came into force. 2. The property acquired by a Hindu widow under a preliminary decree is a restricted estate, because the preliminary decree does not confer an absolute estate on the Hindu widow, but only a restricted estate. 3. The right of succession to the property of a Hindu widow who died after the Act came into force is governed by the Hindu Succession Act, 1956 and not by the previous state of law, because the Hindu Succession Act, 1956 does not purport to repeal and enact a statute regarding succession to a male Hindu.
Final Decision: The application of the daughter of the Hindu widow for addition of herself as a party to the partition suit and for determination of her share in the property in suit was allowed.
( 1 ) THIS is an application for addition of a party in a partition suit and a very interesting point of law on the Hindu Succession Act, 1956 has been canvassed.
( 2 ) THE suit in which the present application is made is a suit for partition of the estate left by Sashi Bhusan Roy Chowdhury, who died intestate in 1922, leaving him surviving Indu Bhusan, a son by his pre-deceased wife, and a second wife and three sons by her. We are not concerned in this application about the second wife and her sons. Indu Bhusan died in 1946, leaving him surviving his widow Sarajubala, a son Ramani Bhusan and a daughter Bidyutlata. The present suit for partition was instituted on 24-7-1953. On 10-2-1956, a preliminary decree for partition was passed by me, declaring the shares of the parties and appointing a Commissioner of Partition to work out the preliminary decree. The preliminary decree declares Sarajubala's share In the joint properties to be that of a Hindu widow as prescribed by Hindu Law and directs that the share to be allotted to her be held by her as a Hindu widow during her natural life. On 17-6-1956, the Hindu Succession Act came into force. The point raised by Mr. Somnath Chatterjee, learned counsel for the petitioner Bidyutlata, is that under Section 14 of the said Act, Sarajubala, on the date of the Act coming into force, became entitled to her share in absolute title and not as a Hindu widow during her natural life. On 5-3-1957, Sarajubala died. On Sarajubala's death, Bidyutlata and Ramani Bhusan, as Sarajubala's heirs, have become equally entitled to the property left by her. On the basis of this title, the present notice has been taken out by Bidyutlata for herself being added as a party and for determination of her share in the property in suit and for passing of a new preliminary decree; in the (alternative, for rectification of the preliminary decree already passed. Section 14, Hindu Succession Act. 1956 reads as follows :"14. Property of a female Hindu to be her absolute property.-- 1. Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.-- In this subsection, "property" includes both movable and immovable property acquired. by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. 2. Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. " Mr. Chatterjee contends, in the first place, that In terms of Sub-section (1) of Section 14, Sarajubala, though was in possesion of the property as a limited owner prior to the passing of the Act, became a full owner thereof on the Act coming into force on 17-6-1956. It cannot be disputed that if Subsection (1) of Section 14 of the Act applies, Sarajubala would be entitled to her share in absolute title. But the question is, having regard to Sub-section (2) of Section 14, can it be held that Sub-section (1) applies to the instant case ? Sub-section (2) expressly states that Sub-section (1) shall not apply to any property acquired under a decree of a civil Court which prescribes a restricted estate in such property. The preliminary decree passed in this suit does prescribe a restricted estate to Sarajubala, that is, "a Hindu widow's estate to be held by her during the term of her natural life. " Mr. Chatterjre. argues that the instant
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