Section 3(2) of the Hindu Women's Rights to Property Act, 1937, which gave limited retroactive effect to the Act, did not apply to a case where the entire joint family property had devolved on a sole surviving coparcener prior to the date of commencement of the Act.

Judgement

NARASIMHAM, J. :- This second appeal is by defendants 1 and 2 against the concurrent decisions of the two lower Courts declaring the plaintiffs title to the disputed property and directing that he should recover possession of the same from defendants 1 and 2. The following pedigree will be helpful in understanding this litigation.

2. The plaintiffs case was that the family remained joint, that Arta died sometime in 1920, that Krupasindhu died in 1939 issueless, his wife having predeceased him, and that the entire joint family property devolved on the plaintiff by survivorship. Defendant 3 being the widow of a deceased coparcener was entitled only to maintenance and that the Kabala executed by her in favour of defendants 1 and 2 on 23-2-40 in respect of the joint family property was invalid and did not convey any title to them. The main defence of defendants 1 and 2 was that Jagannath, the father of the plaintiff, had been given away in adoption to one Madhab Das and that consequently the plaintiff had absolutely no interest in the joint family property which devolved on the descendants of Lokanath only. It was further alleged that Arta survived Krupasindhu and became the sole coparcener, that soon after his death defendant 3 succeeded to the entire property as his widow and that she executed the Kabala in question in favour of defendants 1 and 2 for legal necessities.

3. The trial Courts finding was that Madhab Das was the maternal grand-father of Jagannath and Lokanath and though Jagannath was given in adoption to Madhab has that adoption was invalid in North Orissa, the parties being Brahmins of Puri district. It further held that there was a division of status between the plaintiff on the one hand and Arta and Krupasindhu on the other as early as 1919 and the disputed property belonged to the descendants of Lokanath only. The trial Court rejected the plaintiffs (sic) statement that Arta survived Krupasindhu and held that Arta died long before 1927 and that after the said death of Krupasindhu the plaintiff as the nearest agnate succeeded to his property in preference to the widow of a predecesed coparcener (Arta). The sale-deed executed by defendant 3 in favour of defendants 1 and 2 was therefore declared to be invalid and plaintiffs suit was decreed.

In the lower appellate Court though the respondent had filed a cross-objection challenging the finding of the trial Court to the effect that Jagannath was adopted by Madhab and that the plaintiff was separate from Arta and Krupasindhu, at the time of hearing the cross-objection was not pressed in respect of these two issues. The lower appellate Court therefore discussed mainly the question as to whether the adoption of Jagannath by Madhab was invalid and agreed with the trial Courts finding in this respect. It further held that Arta predeceased Krupasindhu and that consequently defendant 3 was not entitled to anything else but maintenance out of the joint family property of Arta and Krupasindhu. The finding of the lower Court about the invalidity of the Kabala was, however, maintained and the appeal was dismissed.

4. In pressing the second appeal Mr. H. Mahapatra relied mainly on the provisions of the Hindu Womens Rights to Property Act, 1937 (hereinafter referred to as the Act) as construed by this Court in a special Bench decision reported in - Radhi Bewa v. Bhagawan Sahu, AIR 1951 Orissa 378 (SB) (A). Mr. Mohapatra urged that in view of the plaintiffs own case that he, Arta and Krupasindhu were all joint, defendant 3 as the widow of a predeceased coparcener would be entitled to a share in the joint family property by virtue of the aforesaid Special Bench decision inasmuch as on the date of the commencement of the Act (1937) the coparcenary had not been disrupted by partition between Krupasindhu and Dinabandhu.

This argument, however, is not available to him because whatever might have been the nature of the claim put forward by the plaintiff in his plaint, the finding of