The Hindu Women's Rights to Property Act, 18 of 1937, as amended by Act 11 of 1938, is not retrospective and does not apply to the case of a widow whose husband died prior to the date of commencement of the Act, namely 14-4-1937.

PANIGRAHI, C. J.

( 1 ) THIS case comes before us on a reference by a Division Bench. The question referred to us for our opinion is formulated as follows :

"whether the provisions of Section 3 (2), Hindu Women's Rights to property Act, 18 of 1937 as amended by Act, 11 of 1938 are retrospective so as to apply to the case of a widow whose husband died prior to the date when the said Act came into force. "

This reference was necessitated on account of the majority decision in --'badhi bewa v. Bhagawan Sahu', AIR 1951 Orissa 378 (SB) (A), according to which section 3 (2) of the Act is retrospective in operation and, consequently, the widow of a Hindu who died before the Act came into force, viz. , before 14-4-1937, was entitled to her husband's share provided that the joint family continued till the date when partition was demanded. This view was subjected to much adverse criticism by another Bench of this Court in --'nandakishore v. Sukti Dibya', AIR 1953 Orissa 240 (B ). In a later case decided by Narasimham and Mohapatra JJ. in-- 'haramoni v. Dinabandhu', AIR 1954 Orissa 54 (C), Narasimham J. reiterated his view that Section 3 (2) of the Act was retrospective though the case was decided on the footing that the decision of the Special Bench in Radhi Bewa's case (A), did not apply to the facts of that case while Mohapatra J. stuck to his view in nandakishore's case (B ).

( 2 ) THE decision in Radhi Bewa's case (A), has not been followed either in this Court or in any other Court since its pronouncement and its importance, as a precedent, has been considerably affected by the later decisions of this Court. It would appear, therefore, that decision has been ploughing a lonely furrow with its wings clipped and has proved a fertile source of speculative litigation giving rise to a progeny of debatable problems. It has stood so long more as a warning to be guarded against, than as an authority to be respected. It has, therefore, become necessary for the Division Bench to refer the question, as formulated above, to the full Bench so that the conflict of opinion may be resolved finally.

( 3 ) THE determination of the question whether the majority decision in Radhi bewa's case (A), is correct would depend upon the true construction of Section 4. For a clear understanding of the position, I may quote Sections 2 to 5 :

"2. Notwithstanding any rule of Hindu law or custom to the contrary the provisions of Section 3 shall apply where a Hindu dies intestate. 3. (1) When a Hindu governed by the Dayabhaga School of Hindu law 'dies intestate' leaving any property, and when a Hindu governed by any other School of Hindu law or by customary law dies intestate leaving separate property his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of Sub-section (3) be entitled in respect of property in respect of which he dies intestate, to the same share as a son: provided that the widow of a predeceased son shall inherit in like manner as a son, if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son. Provided further that the same provision shall apply 'mutatis mutandis to' the widow of a pre-deceased son of a predeceased sort. (2) When a Hindu governed by any School of Hindu Law other than the dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate provided, however, that she shall have the same right of claiming partition as a male owner. (4) The provisions of this Section shall not apply to an estate which, by customary or other rule of succession, or by the terms of the