Anandi Devi v. Shyam Kishore — 1973 DIGILAW 377 (ALL)

ORDER K.N. Srivastava, J. - This is an appeal against the judgment and decree passed by the Distt. Judge, Fatehpur dismissing the appeal as well as the cross objection against the judgment and decree passed by the Addl. Civil Judge, Fatehpur, declaring that the Plaintiff's share in the property in suit is one-third and she is entitled to the partition of the same. 2. In order to understand the facts of the case, it is necessary to give a small pedigree of the family of the parties. One Brij Nandan Lal had two sons--Shyam Kishore, Respondent No. 1 and Raj Kishore. Smt. Anandi, Plaintiff-Appellant, is the widow of Raj Kishore. Smt. Ram Shri was the widow of Brij Nandan Lal who died in the year 1940. Raj Kishore died in the year 1942. Smt. Ram Shri died in the year 1946. There was a series of litigation between Smt-Anandi and Shyam Kishore. Earlier Smt. Anandi alleged that there was a private partition between her and the Respondent by which certain property of Schedule A was given to her and the property given in Schedule B with a flour mills, ornaments and cash were given to the Defendant. She filed a suit on the basis of this private partition which was fought upto the High Court. This Court held that there was never any family settlement between the parties nor the family property was ever partitioned between them. After the decision of the appeal arising out of the above suit by the High Court, the Plaintiff filed the present suit alleging that she had one-half share in the entire property detailed at the foot of the plaint and claimed partition of the same. 3. The suit was contested by the Respondent who alleged that one-third share in the disputed property was that of Smt. Ramsri who died in 1946 and on her death the share of Smt. Ramsri devolved on him and thus he was entitled to two-third share of the disputed property and the Plaintiff was entitled to only one third share. The defence of the Respondent was accepted by the trial court who decreed the suit for partition of one-third share of the Plaintiff. The Plaintiff filed an appeal. The Respondent also filed a cross objection. Both the appeal and the cross objection were dismissed. 4. The defence of the Respondent was accepted by the trial court who decreed the suit for partition of one-third share of the Plaintiff. The Plaintiff filed an appeal. The Respondent also filed a cross objection. Both the appeal and the cross objection were dismissed. 4. The learned Counsel for the Appellant contended that Smt. Anandi was entitled to a share u/s 3(2) of the Hindu Women's Right to Property Act, 1937 and she was entitled to claim partition of her share in the property in the same manner in which her husband would have done had he been alive on the date on which this partition was claimed. The contention of the learned Counsel for the Respondent was that according to Section 3(2) of the Act aforesaid, Smt. Ramsri got one-third share in the property being the widowed mother and as such the share of Smt. Ramsri would devolve on the Respondent. The question, therefore, arises as to what right a widow gets under the Hindu Women's Right to Property Act, 1937. Earlier a Hindu widow had a right of maintenance. She could not claim a partition of the family property but she was entitled to a share in the property in lieu of maintenance. The right she got under the old Hindu Law was a limited right which was to devolve on her death on the heirs of her husband. 5. By the enforcement of the Hindu Women's Right to Property Act, a right was given to a widow to claim partition and after partition to use the property so partitioned in the manner she liked. Therefore, Smt. Ramsri could also claim a partition but by the enforcement of Hindu Women's Right to Property Act, she was not entitled to any share without claiming any partition. B virtue of the Act itself she would not be deemed to be a coparcener of the family and was en* titled to a share equal to the share of her husband. The necessary ingredient to invoke the Hindu Women's Right to Property Act was that the person claiming should be the widow of the joint Hindu family as defined in the Act and that she could claim a partition of her share. The necessary ingredient to invoke the Hindu Women's Right to Property Act was that the person claiming should be the widow of the joint Hindu family as defined in the Act and that she could claim a partition of her share. There is no dispute that Smt. Ramsri did not claim any partition during her life time and therefore she would not be entitled to any share u/s 3(2) of the Act unless she claimed the partition of the property. Thus the contention of the learned Counsel for the Appellant that, one-third share devolved on Smt. Ramsri is without force because under the Act there was no question of devolution but the only question was that a widow had previously no right to claim partition could claim partition and get a share which her husband could have got at the time of petition. 6. Now the question arises as to whether Smt. Anandi would get the share to which she was entitled at the time of the death of her husband or to a share which her husband would have got had he been arive at the time when she claimed petition. A Hindu wife is called 'Ardhangini'. The husband and wife go to make a complete entity. After the death of a husband, only half of the entire entity remains in existence and the law as it stood only; allowed a right of maintenance to such a widow but this right has been enlarged now and she can claim partition. Therefore, she can claim partition in the same manner in which her husband would have claimed had he been alive. 7. There is no dispute that if this partition which Smt. Anandi had, claimed had been claimed by Raj Kishore, he would have been in titled to half, share. The question arise, as to why then Smt. Anandi should not get the same share which her husband would have got had he been alive at he time the partition suit was filed. 8. The learned Counsel for the Respondent contended that Smt. Anandi was not a coparcener of the family nor she was a survivor of the Joint Hindu Family and as such, she could not be entitled to the decrease and increase of the family property Which took place long after the death of her husband due to deaths, births in the family and other transfers. The law on the point is now well settled that the position of Smt. Anandi is not that of a survivor or of a coparcener. Her position is that of a member of the joint Hindu Family. If there has been disruption in the family certainly she is entitled to a share equal to the share of tier husband at the time of partition. 9. The learned Ditt. Judge relied on two Supreme Court decisions: 1. Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, AIR 1965 SC 825 , 2. Satrughan Isser Vs. Smt. Subujpari and Others, AIR 1967 SC 272 . 10. The learned Disitt. Judge observed in his judgment that these decisions lay down that interest acquired by the widow u/s 3(2) of the Hindu Women's Right to Property Act would devolve upon the heirs of her husband and therefore, one-third share of Smt. Ram Sri devolved on the Respondent who was the heir of her husband. He possibly missed to see the crux of the case. In Potti's case (supra) reference was made to a Full Bench decision of the Madras High Court-Parappa alias Parappa alias Hanumanthappa and Another Vs. Nagamma and Others, AIR 1954 Mad 576 and it was observed as below: Further according to the Full Bench a widow can under the Act claim, a, share not only in the property owned and possessed by the family at the time of his death but also in the accretions arising therefrom, irrespective of the character of the accretions. The various decisions to which we have adverted rest on the view that the interest which the law has conferred upon the widow is a new kind of interest though in character it is, what is commonly known as the Hindu widows estate. This interest is in substitution of her eight under the pre-existing Hindu Law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her decease (sic) would have, been in the matter of, exercise of that right. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her decease (sic) would have, been in the matter of, exercise of that right. That is to say, according to those decisions, her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of toe family or according as there are accretions to or diminutions of the property In our opinion, these decisions lay down the law correctly. 11. There is not the least doubt that what right was conferred upon the widow's inheritance was not a right of ownership but a right created by the statute to seek partition of the family property and to have a share equal to the share the husband of the widow would have got at the time of partition. This aspect of the case was absolutely missed by the lower appellate court. 12. In the other case also, the principle laid down in Potti's case was affirmed and it was observed hat a Hindu widow had a right to claim partition. In the above case, it was observed as below: She has still power to make her interest definite by making a demand for partition as a male owner may. 13. This clearly shows that she is entitled to the same share to which her husband would have been entitled had he filed a suit for partition. Certainly if Smt. Ramsri had claimed partition and got her share partitioned, then after her death, the share which she got on partition would have passed to the Respondent, who is her son, in preference to the Plaintiff-Appellant. But she died as a member of the joint family and never claimed any share in the property. Therefore, when the shares were not ascertained and liable to diminution and accretion, it cannot be said that Smt. Ramsri had one-third share in the property and on her death her share devolved on her son, Respondent No. 1. In this view of the matter, both the courts have erred in holding that Smt. Ramsri had one third share in the disputed property which devolved on the Respondent. In this view of the matter, both the courts have erred in holding that Smt. Ramsri had one third share in the disputed property which devolved on the Respondent. They were also wrong in holding that Smt. Anandi had one-third share in the disputed property. In view of the above discussion, it is clear that Smt. Anandi had one-half share in the disputed property and the other half belonged to the Respondent. 14. In the result, the appeal is allowed with costs. The judgment and decree passed by the trial court and the lower appellate court are modified to this extent that the suit for partition of one-half share of Smt. Anandi is decreed. The preliminary decree if passed shall be modified accordingly otherwise it shall be prepared accordingly.