Judgement

Ray, C. J. :- This is a plaintiffs appeal in a suit for declaration that the suit lands are their ancestral joint family properties and that defendant 1 has not acquired any title thereto by virtue of a sale-deed dated 27-2-1940, executed by defendant 2. The plaintiffs and the husband of defendant 2 were members of a joint Hindu Mitakshara family at the time of the latters death. On his death, defendants succeeded to her husbands interest in the family properties under the Hindu Womens Right to Property Act. She transferred her this interest in favour of defendant 1 by the aforesaid sale-deed. The suit was resisted on the ground that defendant 2 had the right to alienate and the said alienation is binding on the plaintiffs. There was some dispute as between the parties as to whether the claimed properties were ancestral joint family properties. That controversy, however, has been set at rest and has not been re-agitated here. In this appeal, we shall proceed on the assumption that Judhisthir was joint in mess and estate at the time of his death.

2. The learned Munsif dismissed the plaintiffs suit on the findings that the properties, in dispute, were joint family properties and defendant 2 had no right. The learned lower appellate Court reversed the decree of the trial Court holding that, defendant 2 had the right of alienation under S. 3 (3), Hindu Womens Right to Property Act, as extended to agricultural lands in Orissa. Hence the second appeal by the plaintiffs.

3. Mr. L. K. Das Gupta, the learned counsel for the appellants, contends most strenuously that the interest that devolves upon a widow under the Hindu Womens Right to Property Act is not alienable by her till she exercises the right of partition as a male coparcener. The hard core of his reasoning is that the interest that devolves upon her is defined in sub-s. (2) of S. 3 of the Act as the same interest as he (the husband) himself had. His submission is that as the husband, before reducing his undivided interest in the coparcernary property to a specified one by partition, had no right of alienation, the same right cannot be conceded to a widow. He tries to substantiate his proposition dexteriously by picking up a few judicial pronouncements in which several characteristics attributable to coparceners interest in the coparcenary have been attributed to the widows interest that devolves upon her under the Act and argues that the absence of right of alienation is a necessary corollary. This method of reasoning, however ingenious, does not serve well in law which is not logical. I shall deal with these cases gradually and will show that the views expressed therein do not run counter to the conception of right of alienation as inherent in the estate that devolves upon a deceased male coparceners widow. With regard to the scheme of the Act and the language employed to carry that out, his contention, in the main, is that sub-s. (2) of the section contains the key provision as to the extent and nature of the widows interest and, that, in that context, sub-s. (3) is a limited provision, that is to say, it lays down certain limitations that detract from the right that is connoted by the defining words the same interest as he himself had. When encountered with the question why then should the interest be described as the limited interest known as a Hindu Womens estate in sub-s. (3), he replies that its object was to deny to her the status of being a fresh stock of descent which she would otherwise have been had not that limitation been imposed by the aforesaid words. But this answer, to my mind, is not adequate to resolve the difficulty. The legislature shall not be presumed to have been redundant in expression of its will. Right of claiming partition would obviously be included within the words the same interest as he himself had occurring in sub-s. (2). It would then be redundant to provide for the right of partition in the proviso to sub-s. (3). In view of the langu