Hiralal Roy Choudhury v. Kumud Behari Roy Choudhury

1. This is an application for addition of a party in a partition suit and a very interesting point of law on the Hindu Succession Act, 1956 has been canvassed.

2. The suit in which the present application is made is a suit for partition of the estate left by Sashi Bhusan Roy Chowdhury, who died intestate in 1922, leaving him surviving Indu Bhusan, a son by his pre-deceased wife, and a second wife and three sons by her. We are not concerned in this application about the second wife and her sons. Indu Bhusan died in 1946, leaving him surviving his widow Sarajubala, a son Ramani Bhusan and a daughter Bidyuilata. The present suit for partition was instituted on 24-7-1953. On 10-2-1956, a preliminary decree for partition was passed by me declaring the shares of the parties and appointing a Commissioner of Partition to work out the preliminary decree. The preliminary decree declares Sarajubala's share in the joint properties to be that of a Hindu widow as prescribed by Hindu Law and directs that the share to be allotted to her be held by her as a Hindu widow during her natural life. On 17-6-1956, the Hindu Succession Act came into force. The point raised by Mr. Somnath Chatterjee, learned counsel for the petitioner Bidyutlata, is that under Section 14 of the said Act, Sarajubala, on the date of the Act coming into force, became entitled to her share in absolute title and not as a Hindu widow during her natural life. On 5-3-1957, Sarajubala died. On Sarajubala's death, Bidyutlata and Ramani Bhusan, as Sarajubala's heirs, have become equally entitled to the property left by her. On the basis of this title, the present notice has been taken out by Bidyutlata for herself being added as a party and for determination of her share in the property in suit and for passing of a new preliminary decree; in the alternative, for rectification of the preliminary decree already passed. Section 14, Hindu Succession Act, 1958 reads as follows:

“14. Property of a female Hindu to be her absolute property. — 1. Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation. — In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

2. Nothing contained in sub-s. (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”

Mr. Chatterjee contends, in the first place, that in terms of sub-s. (1) of S. 14, Sarajubala, though was in possesion of the property as a limited owner prior to the passing of the Act, became a full owner thereof on the Act coming into force on 17-6-1956. It cannot be disputed that if sub-section (1) of S. 14 of the Act applies, Sarajubala would be entitled to her share in absolute title. But the question is, having regard to sub-s. (2) of S. 14, can it be held that sub-s. (1) applies to the instant case? Sub-section (2) expressly states that sub-s. (1) shall not apply to any property acquired under a decree of a civil Court which prescribes a restricted estate in such property. The preliminary decree passed in this suit does prescribe a restricted estate to Sarajubala, that is, “a Hindu widow's estate to be held by her during the term of her natural life.” Mr. Chatterjee argues that the instant case is not hit by sub-s. (2), because, though the preliminary decree prescribes a restricted estate to Sarajubala, it cannot be said that Sarajubala acquired the property under the decree. According to him, a distinction should be made between ‘property acquired’ under a decree with restriction and the property declared to be enjoyed under the Hindu Law which imposes certain restrictions. In the instant case, Sarajubala did not acquire the property under the preliminary decree, but acquired the property by inheritance and the preliminary decree does nothing more than declaring her share in the property under the provisions of the Hindu Law then in force.

3. It is argued, in the second place, that after passing of the Hindu Succession Act, 1956, the Hindu Women's estate has become an absolute estate, though prior to that date it meant a restricted estate. Therefore, on a construction of the decree itself I should hold that Sarajubala has acquired absolute title in the property allotted to her under the decree. In the submission of Mr. Chatterjee, the other construction will run counter to the whole spirit of the Act to 1956. Again, the Legislature cannot have intended to make the section inapplicable simply because of the passing of a preliminary decree declaring the rights of a Hindu widow acquired by inheritance. Dr. Sambit Das, learned counsel appearing for Ramani Bhusan to oppose the application, disputed the above contentions of Mr. Chatterjee. His argument is that on a plain reading of the section, it is clear that once a decree is passed under which a Hindu woman gets a restricted estate, she is disentitled to claim absolute interest therein under S. 14(1) of the Act. It is to be remembered, however, that, no property is ‘acquired’ under a preliminary decree and it is only under the final decree that a party can be said to acquire exclusive ownership in the property allotted to him. This consideration tends to weaken, the force of Dr. Das's argument. Dr. Das further contends that no distinction has been made in the Act between different kinds of decrees & it is not, open to argument that it is not applicable to declaratory decrees. Under no decree, except perhaps certain consent decrees, a person acquires the property under a decree, but the decree in every case declares an existing right and makes it enforceable. It is, lastly argued by Dr. Das that on the date of the passing of the Act the suit was pending and the Act purports to repeal the Hindu Women's Right to Property Act, 1937. Under Section 6 of the General Clauses Act, the repeal shall not affect any right, privileges, obligation or liability acquired, agreed or incurred under an enactment so repealed. Right of Sarajubala, therefore, should be determined by the provisions of the Hindu Women's Right to Property Act, 1937 and not by the Hindu Succession Act, 1956.

4. The point raised by learned counsel and argued with ability on both sides does not, in my judgment, arise in this case and I do not consider it proper to record any final opinion, on such an important question, unless a decision on the point is necessary for the proper disposal of this application. I will assume, for the purpose of this case, that Sarajubala continued to have the Hindu women's estate after the Hindu Succession Act, 1956, came into force on 17-6-1956 and that she did not acquire any absolute interest in the property to be allotted to her under the decree. Or her death, on 5-3-1957, the property reverts back to the estate of her husband Indu Bhusan and would be inherited by the heirs of Indu Bhusan at the date of death of Sarajubala, the limited owner. On that date the heirs of Indu Bhusan, under Section 8 of the Hindu Succession Act, 1956, were Ramani Bhusan, the son and Bidyutlata, the daughter. They would, therefore, equally inherit that part of the property which was allotted to Sarajubala. It should not be forgotten that succession to that part of the estate of Indu Bhusan which was allotted to Sarajubala opens on the date of Sarajubala's death and the heirs of Indu Bhusan on that date would, in law inherit the property.

5. Dr. Das contends that the right sought to be established by Bidyutlata in this application is as and by way of being an heir of Sarajubala and she should not be allowed in this application to make out a different case on the basis of title through her father Indu Bhusan. It is true that the application has been made on the of basis as stated by Dr. Das, but when the facts are clear and the question to be decided is a Pure question of law, I do not think that I should up hold this technical objection on pleadings. If I considered it necessary, I would have allowed the pleading to be amended to have this case made by Mr. Chatterjee.

6. The second argument advanced by Dr. Das is that the instant case would not be governed by the Hindu Succession Act, 1956, but by the previous state of law. The argument is this: 1956 Act purports to repeal the Hindu Women's Right to Property Act, 1937. As the proceedings were pending at the date of repeal, the rights of the parties would be governed by the repealed Act and not by the repealing Act under Section 6 of the General Clauses Act. The Hindu Succession Act, 1956, however, does not purport to repeal and enact a statute regarding succession to a male Hindu. The law of succession to a male Hindu is not to be found in the Hindu Women's Right to Property Act, 1937, but in that part of the Hindu Law which is not a statute law. Section 6, General Clauses Act, therefore, cannot apply to this case.

7. Lastly, it is contended by Dr. Das that on the language of Section 8 of the Hindu Succession Act, 1956, it must be held that the section would only apply to the succession of a male Hindu if the male Hindu dies after the passing of the Act. If, however, the male Hindu dies before the passing of the Act, S. 8 has no application. The opening words of S. 8 to the effect “that the property of a male Hindu dying intestate”, according to Dr. Das, make it clear that in order that S. 8 may apply, the male Hindu, through whom inheritance is claimed, must the after the passing of the Act. Mr. Chatterjee points out that in S. 6 and Section 7 of the same Act the opening words are “when a male Hindu dies after the commencement of the Act,” whereas in S. 8 there is this significant omission of these words “after the commencement of the Act.” This shows, according to Mr. Chatterjee, that the Legislature intended that S. 8 would apply even if the male Hindu dies before the commencement of this Act. Mr. Chatterjee further contended that the phrase “that the male Hindu dying intestate” means only “that in the case of intestacy of Hindu male” and has no reference to the date of death being before or after the passing of the Act. He relies on the decision of the Judicial Committee in case of Lala Dunichand v. Anar Kali, on a case of Hindu Law of Inheritance Act 1929, reported in 73 Ind App 187 : (AIR 1946 PC 173) (A). At page 193 (of Ind App): (at p. 176 of AIR) of the report, we find the following observation of the Judicial Committee:

“In the argument before their Lordships reliance was placed on the words “dying intestate” in the Act as connoting the future tense but their Lordships agree with the view of the Lahore High Court in Shakuntala Devi v. Kaushalya Devi, ILR 17 Lah 356 : (AIR 1936 Lah 1241 (B)), that the words are a mere description of the status of the deceased and have no reference, and are not intended to have any reference, to the Hime of the death of a Hindu male. The expression merely means “in the case of intestacy of “a Hindu male.” To place this interpretation on the Act is not to give retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the widow.”

The above observations applies, in my judgment, to this case with equal force. In my judgment, Bidyutlata as the heir of Indu Bhusan has acquired interest in the property after Sarajubala's death.

8. The application, therefore, succeeds and I make order in terms of paragraphs 1, 2, 3 and 5 of the Notice.

9. Parties will bear their own costs.

V.S.B

10. Application allowed.