Dagadu Balu Gavade v. Namdeo Rakhamaji Khatke

Chagla, C.J:—

This second appeal raises a question as to the interpretation of the Hindu Women's Rights to Property Act, 1937. Although the Act is a very short one, all questions of interpretation of that Act usually raise serious difficulties. Some Judges have observed that the provisions of the Act are obscure, and more charitable minded Judges have said that the drafting of the Act is not very happy.

The question that arises for our consideration arises on these facts. Rakhmaji and Krishna were two brothers who constituted a joint and undivided Hindu family. Krishnaji died on September 25, 1945, leaving a widow who is defendant No. 2 and a daughter who is defendant No. 3 and defendant No. 1 is the son of Rakhmaji. On September 3, 1946 defendant No. 2 sold her interest in the joint family property to the plaintiff for Rs. 5,000, and the plaintiff filed the suit from which this appeal arises for partition. The question that has been debated before us is whether under the provisions of the Hindu Women's Rights to property Act a widow in a joint family has a right to alienate the share which her husband had in the property and which has devolved upon her by reason of the provisions of that Act.

Now, in construing this Act what has got to be borne in mind is that it was an Act ameliorative in character and intended to carry out an important social reform. Its express intention was to give better rights to women in respect of property and, therefore, the various provisions of the Act must be construed in the light of the intention which the Legislature had in placing this piece of legislation upon the statute book. We are concerned in this case with sub-s. (2) of s. 3 and that provides:

“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.”

Therefore, in this case when Krishna died he had an interest in joint family property and his widow by reason of this sub-section would have the same interest in the joint family property which her husband had. Sub-section (3) provides:

“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.”

Now, reading sub-ss. (2) and (3) together, it is clear that in sub-s. (2) the Legislature intended that the Hindu widow should have in the joint family property the same interest that her husband had, but the Legislature wanted to qualify the nature of that interest. If sub-s. (2) stood by itself without the qualifications contained in sub-s. (3), it can hardly be disputed that the Hindu widow would have had the totality of rights which her husband had in relation to the joint family property. But the Legislature did not wish to go as far as that and, therefore, it enacted sub-s. (3) and provided for certain limitation upon the rights of the widow, and the limitation is that although the interest of the husband would devolve upon his wife the interest would not be an absolute interest but it would be a limited interest, an interest known to Hindu law as a Hindu woman's estate. The expression “Hindu woman's estate” is by no means a very happy expression. Hindu law knows of a Hindu widow's estate, but it is difficult to understand why the Legislature used an expression not known to Hindu law and omitted to use an expression which has been well understood for a long time in Hindu law. But there can be no doubt, and it is not disputed, that what the Legislature really intended was to use the expression “Hindu widow's estate”. Therefore, having conferred upon the Hindu widow a limited interest, the Legislature was at pains to point out, lest it should be suggested that the widow having a limited interest had no right to partition which her husband had, that notwithstanding this limited interest the widow had the same right of claiming partition as a male owner would have. Therefore, if the Legislature's intention was to give to the widow the same interest that her husband had, but make that interest a limited interest of the same character and kind as a Hindu widow's estate, what we have to consider is what are the incidents of a Hindu woman's estate? There is nothing in sub-s. (3) to suggest that having limited the Hindu widow's estate the Legislature wanted further to limit it by conferring upon her only some of the incidents of that estate and not all the incidents of that estate. The incidents of a Hindu woman's estate are well known and well settled. She cannot alienate her property except for legal necessity, but she has the right to alienate the property even without legal necessity during her lifetime. In other words, she can alienate her own life interest and the alienee can enjoy the property during her life in the same manner as the widow herself would have enjoyed it.

Mr. Desai contends that we must not confer upon the Hindu widow rights greater than what the Act expressly confers upon her, and Mr. Desai's contention is that inasmuch as the Legislature has not provided that the Hindu widow could alienate her interest in the joint family property we must not by inference invest her with that right. In our opinion, this approach to the Act is erroneous. It was not for the Legislature expressly to provide that the widow should have the right of alienation. The Legislature having given to the widow the limited interest known as the Hindu widow's estate, it was unnecessary for the Legislature to set out each and every incident of that estate. Rather than the Legislature expressly conferring upon the widow the right to alienate, the Legislature should have expressly taken away that right if the intention was only to give some of the incidents and not all the incidents of a Hindu widow's estate. Therefore, in our opinion, on a plain reading of the two material sub-sections, it is clear that a Hindu widow on her husband's death in a joint Hindu family gets the same interest that her husband had with the limitation that the interest is not absolute but is limited and limited in the manner known to Hindu law, viz., a Hindu widow's estate. It is clear that the Legislature did not wish to confer upon the Hindu widow the same right that her husband as a coparcener had quae the joint family property. In Bombay a coparcener can alienate his interest in the joint Hindu family and his alienation would be absolute. Of course the alienation would have to be for value. In the case of a Hindu widow who steps into the shoes of her husband in a joint family, her right is not to be able to alienate absolutely her husband's share in the joint family which has devolved upon her, but only to be able to alienate absolutely for legal necessity, and if the legal necessity is absent then only to alienate her own life interest. Therefore, the Legislature did not intend that the widow should be placed in the same position as her husband. But what Mr. Desai wants us to hold is to deprive the Hindu widow even of the accepted incidents which attach to the Hindu widow's estate.

It is then urged by Mr. Desai that the right to partition which is given to the widow is a personal right and that right cannot be assigned and cannot be exercised by a stranger. Now, what the widow has done in this case is not to assign her right to partition, she has assigned her life interest, and it is by reason of the fact that the alienee is entitled to enjoy that life interest that he becomes entitled to partition. His right to partition does not arise by reason of the Act; his right to ask for partition arises by reason of the accepted principles of Hindu law. The matter may also be looked at from a different point of view. When the Legislature conferred upon the widow the very important right of claiming partition, the Legislature did not intend that this right should be illusive; it was a substantial right that the Legislature was conferring upon the widow. If Mr. Desai's arguments were to be accepted, even though the widow may file a suit for partition and get her share partitioned, she can make very little use of it because her power to alienate even during her lifetime would be absent. She could only enjoy the property, but that she could have enjoyed in any case even without partition. Therefore, if we were to concede to the widow the right to partition and take away from her the right to alienate during her lifetime, we would make a substantial right conferred by the Legislature into a very illusory right. There is a judgment of the Orissa High Court which has taken the same view of the sections we are considering, and the case is reported in Kunja Sahu v. Bhagban Mohanty(2).

In our opinion, therefore, the widow had the right to alienate the property which she did on September 3, 1946, in favour of the plaintiff, although that right must be limited to possession of that property during her lifetime.

Now, the plaintiff came to Court with an allegation of legal necessity and claiming the property absolutely. Both the Courts below have held that no case of legal necessity was made out. The trial Court passed a decree in favour of the plaintiff adding a declaration that the alienation was not binding on the next reversioners of Krishna. The learned District Judge dismissed the plaintiff's suit holding that the widow had no right to alienate at all even during her lifetime. In our opinion the proper declaration with regard to this alienation should be that the alienation is valid only for the duration of the life of the widow. It is unnecessary for us to consider or to make any declaration with regard to persons who become entitled to the property on the death of the widow. We are only concerned with the right of the plaintiff and his right is limited to the possession of this property during the lifetime of the widow.

Therefore, we allow the appeal, set aside the decree of the lower Appellate Court and restore the decree passed by the trial Court with modification and we will modify the declaration in the manner indicated in the judgment.

The learned District Judge has held that there was no necessity whatsoever for the widow to alienate this property, that the property was worth much more than Rs. 5,000 for which the plaintiff purchased it, and the learned District Judge has also taken the view that the plaintiff was purchasing a litigation by purchasing this property. In view of the conduct of the plaintiff, both the trial Judge and the District Judge has deprived him of costs and made no order as to costs of the parties. In our opinion, we must make a similar order with regard to costs. There will be no order with regard to the costs of this appeal.

Appeal allowed.

K.B.S