The widow's interest under the Hindu Womens Rights to Property Act, 1937, is not a fixed interest but a fluctuating one liable to augmentation and reduction. The widow does not get the property by way of inheritance or survivorship but by virtue of the special provisions of the Act.

Judgement

MOHAPATRA, J. :-

This second appeal has been filed by defendants 1 and 2 against the reversing judgment of Sri T.V. Rao, Subordinate Judge of Balasore, dated 15th July 1950, arising out of a suit brought by the original plaintiff Kangali Naik for declaration of title, for confirmation of possession, or, in the alternative, recovery of possession. Rushi and Kangali (the original plaintiff) were two brothers.

Rushi is long dead leaving behind him his two sons Bhagirathi and Bdlaram. Both the brothers Bhagirathi and Balaram died in the same month, that is, October-November of 1939 and at an interval of nearly 10 or 12 days as the deaths were due to cholera. But nevertheless it is the admitted position that Balaram died first leaving behind him his only heir the widow Pitei. Pitei died after April 1944. Bhagirathi died leaving behind him his widow Keluni (defendant No. 1) and his daughter Malati (defendant No. 2), It is in respect of the interest of Balaram that the present controversy arises.

According to the plaintiff, Balaram and Bhagirathi were separate, and Balaram having died leaving his only heir the widow Pitei and after the death of Pitei, Kangali, the paternal uncle of Balaram, is the next preferential heir and is entitled to the property in suit. Defendant No. 1 Keluni, the widow of Bhagirathi, executed a deed of surrender on 23rd February 1945 in favour of her daughter Malati (defendant No. 2) on the basis of which the plaintiffs possession having been disturbed, the present suit has been brought.

2. The defence version is that Balaram and Bhagirathi were continuing joint till the death of either; Pitei never possessed the suit property separately but she was all along living with Keluni. After the death of Pitei in the middle of 1944, her interest in the property passed by way of survivorship to Keluni who alone is entitled to the property in preference to Piteis husbands heir Kangali.

3. The trial Court dismissed the plaintiffs suit accepting the contention of the defence that in fact Bhagirathi and Balaram were joint and that on Piteis death her interest passed by way of survivorship to Keluni. The lower appellate Court has confirmed the finding of the trial Court that Bhagirathi and Balaram were joint at the time of their death, but nevertheless has reversed the judgment of the trial Court on the ground that Balarams interest, which passed on to Pitei on the basis of Act 18 of 1937 (Hindu Womens Rights to Property Act, 1937), cannot pass in favour of Keluni by way of survivorship, and the plaintiff being the next preferential heir is entitled to the property in suit. He therefore decreed the suit of Kangali.

4. As I have indicated above, both the Courts below having come to the concurrent finding, which has not been challenged before us, that Balaram and Bhagirathi were joint till the time when Balaram died on 1st November 1939, the only question that remains to be determined in the present appeal is whether on the death of Pitei, Balarams interest in the joint family property will pass by way of survivorship in favour of Keluni or will be inherited by Kangali, the plaintiff. The present respondents are the legal representatives of the original plaintiff Kangali.

5. The entire question depends upon the interpretation of Sub-ss. (2) and (3) of S. 3 of Act 18 of 1937. The sub-sections run as follows :

"(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag 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-s. (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 womans estate, provided however that she shall have the same right of claiming partition as a male owner."

Mr. Misra, appearing on behalf of the appellants, took us through quite a number of decis