Narasimham, J.:— This is an appeal by defendant No. 1 against the decision of the Subordinate Judge of Berhampur decreeing the plaintiffs suit for partition of the properties described in Schedules ‘A’ and ‘B’ of the plaint and for other consequential reliefs.

2. Defendant No. 1, is the widow of the T. Ramayya Naidu who died intestate on 17-12-46. The plaintiff is their only son. He separated from, his father on 19-9-1938 after executing a registered deed of partition by which the disputed properties described in Schedules ‘A’ and ‘B’ of the plaint fell to his father's share. The plaintiff has a sister named Kalimoni and in the deed of partition between between the father and the son it was provided that each of them should contribute Rs. 3,000/- for her marriage expenses. For some reason or other, her marriage was not solemnised during the life-time of Ramayya Naidu. After his death, the plaintiff's mother (defendant No. 1) performed the marriage of Kalimoni on 22-4-1947 and for that purpose she sold half share of their house described in Schedule ‘B’ to defendant No. 2 for a sum of R. 10,000/-. The plaintiff alleged that there was no legal necessity for such sale, that he had already contributed his share of Rs. 3,000/- for his sister's marriage expenses and that adequate cash had been left by his father for the same purpose and that his mother (defendant No. 1) fell under the clutches of defendant No. 2 who was a designing intriguer and alienated valuable house property without legal necessity for a grossly inadequate price.

3. The plaintiff, however, conceded that his mother (defendant No. 1) was entitled to half share of the properties left by his father and while asking for partition of the properties described in Schedules ‘A’ and ‘B’ further prayed for a declaration that the sale deed dated 20-4-1947 executed by his mother (defendant No. 1) in favour of defendant No. 2 was fraudulent collusive and not binding on him.

4. Defendant No. 1 contended that by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937 (Act 18 of 1937) (hereinafter referred to as the Act) she was entitled to the whole of the properties left by her husband in as much as the plaintiff had separated from him as early as 1938. She further stated that the alienation made in favour of defendant No. 2 was not collusive but for legal necessity as the plaintiff made absolutely no arrangements for his sister's marriage.

5. Defendant No. 2 also contested the suit in the lower Court stating that the alienation in his favour was for legal necessity and binding on the plaintiff.

6. The trial Court held that out of the consideration of Rs. 10,000/-, Rs. 9,000/- was actually spent for the marriage and other incidental expenses of Kalimoni and thus the transaction was for legal necessity. But he thought that the price paid for the property was grossly inadequate and that there were some other circumstances connected with the transaction which indicated that it was not ‘above board’ and was not therefore valid and binding on the plaintiff. As regards the share of the plaintiff in the disputed properties the learned lower Court accepted his contention that he was entitled to halt share.

7. Hence, he passed a preliminary decree for partition. But at the same time he gave a declaration to the effect that the sale deed executed by defendant No. 1 in favour of defendant No. 2 would not be binding on the plaintiff on condition that the entire consideration money was paid to the second defendant within a specified period.

8. Defendant No. 1 alone appealed to this Court. Defendant No. 2 was made a respondent; but he has not cared to enter appearance in this appeal or to contest the decision of the lower Court regarding the setting aside of the alienation on certain conditions. This portion of the judgment of the trial Court must therefore be taken as final.

9. The only question that was pressed before us was the question about the share of the plaintiff in the disputed properties. Defendant No. 1 (the appellant) contended that by virtue of the provisions of the Act she was entitled to the whole of the properties and that the plaintiff as the divided son of her husband had no right to the same during her life-time. The plaintiff, however, while conceding that the provisions of the Act would apply to the present case, urged that he was entitled to one half share.

10. The material portions of sub-ss. (1) and (2) of S. 3 of the Act on the construction, of which this litigation rests may be quoted:

“3(1).— When a Hindu governed by the Dayabhag School of Hindu Law these intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together shall, subject to the provisions of sub-s. (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son.;

(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-section (3) have in the property the same interest as he himself had.”

11. If the share obtained by Ramayya Naidu after partition with his son (the plaintiff) in 1938 be held to be his ‘separate property’ for the purpose of sub-s. (1), S. 3, defendant No. 1 as his widow would get the same share in it as his son, namely, the plaintiff. On this view the plaintiff's contention that he and his mother were entitled to half share each in the disputed properties must prevail. On the other hand, if it be held that Ramayya Naidu's property after partition with his son would continue to be ‘joint family property’ as understood in sub-s. (2), defendant No. 1 as his widow would obtain his entire interest to the exclusion of his divided son.

12. This is the main argument that was advanced by Mr. G.C Das, counsel for the appellant. Hence, the question for decision is whether the properties left by Ramayya Naidu at his death were his ‘separate properties’ or ‘joint family properties’ as understood in the Act.

13. The leading decision on the subject is the well-known decision of the Federal Court reported in — ‘Umayal Achi v. Lakshmi Achi’, AIR 1945 FC 25 (A). There the question for consideration was whether when a sole surviving coparcener died leaving two widows and a widowed daughter-in-law of a predeceased son, his properties would be ‘separate properties’ within the meaning of sub-s. (1) of S. 3 of the Act.

14. Their Lordships of the Federal Court answered this question in the negative. They pointed out that the expression ‘separate property’ was used some times in a ‘limited sense’ to denote what was generally known as ‘self-acquired property’ as strictly understood; whereas some times it was used in a loose sense as including properties obtained by a coparcener on partition and also properties which unvoiced on a sole surviving coparcener. The latter class of separate property doubtless resembled self-acquired property so far as the absolute disposing power of the male owner was concerned.

“There is, however, this difference between them, viz., that in the case of self-acquired property, the owner's power of disposition will continue to remain undiminished throughout his lifetime, unless he chooses voluntarily to throw it into the joint family stock, whereas, in the case of the other two kinds of property, his power of disposition will become qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption.

15. Their Lordships further pointed out that merely on the ground that at a particular point of time the owner had unrestricted power of disposition over the property it would not be held to be “separate property’ as understood in sub-s. (1), S. 3. In the subsequent discussions in the judgment, properties which fell to a Hindu Father on partition were dealt with on the same footing as the properties which devolved on a sole surviving coparcener and these were held to be not ‘separate properties’ for the purpose of S. 3(1). I may again, quote the following observation of their Lordships:

“But in the case of property obtained by the father on partition or obtained by him as the last surviving coparcener, the moment sons are bora to him, they will become coparceners and there will be no occasion for the property devolving on them at the death of the father. The closing words of S. 3(1) of the Act, viz., ‘devolve upon, his widow along with his lineal descendants in like manner as it devolves upon a son’ will be appropriate to the former case but not to the latter case.

The language of clause substituted by Act 11 of 1938 is slightly different but the scheme remains the same. The widow was certainly not intended to become a coparcener with her husband even during his life time. The Act of course intended to redress the widow's disabilities even in such a case; but that redress is provided by sub-section (2) and not by sub-section (1) of S. 3.”

16. It is true that while making these observations, their Lordships were not thinking of a case of the present type where a father had effected partition with his only son. But the main reasons for grouping together the properties obtained by a father on partition with the properties devolving on a sole surviving coparcener apply equally in cases of the present type.

17. The plaintiff had separated from his father in 1938. The latter lived till 1946. During that period, though the disputed properties were the-separate properties of the plaintiff's father in the loose service of the expression, yet the contingency that he might beget a son and thus constitute a new coparcenary between himself and his undivided son was always present. If that event had happened, the properties would have been., held to be joint family properties and sub-s. (2) of S. 3 would have applied.

18. Hence, during the period from 1938 to 1946 the properties had the potentiality of becoming joint family properties on the birth of a son to Kamayya Naidu and the reasons given by Their Lordships (quoted above) in support of the view that class of property will not come under sub-s. (1) of S. 3 would apply with equal force in the present case.

19. In the subsequent paragraph of the same judgment Their Lordships discussed an illustration to show the inequitable result that would arise if ‘separate property’ as loosely understood is held to come within the scope of sub-s. (1) of S.S They discussed the case of partition between a father-in-law and his widowed daughter-in-law by virtue of the right conferred on her by sub-s. (1) of S. 3.

20. After such partition, if the share that fell to the father-in-law be held to be ‘separate property’ for the purpose of that sub-section, then after his death his widow and his daughter-in-law would again divide that property into two equal halves and the net result would be that the widowed daughter-in-law would get three-fourths share out of the original coparcenary property whereas her mother-in-law would get only one-fourth.

21. Their Lordships observed that the Legislature could not have meant to produce such an inequitable result. This illustration makes it absolutely clear that the Federal Court did not consider that the property that fell to a father-in-law on partition between himself and his widowed daughter-in-law was ‘separate property’ as understood in sub-s. (1) of S. 3.

22. In the present case, the property in dispute fell to a father on partition between himself and his son. So far as the nature of the property is concerned, there seems no distinction between a partition between a father and his son and a partition between a father-in-law and his widowed daughter-in-law by virtue of the rights conferred on her by sub-s. (1) of S. 3 of the Act.

23. Hence, on a fair construction of the judgment of the Federal Court it must be held that the properties which fell to Ramayya Naidu by virtue of the partition of 1938 were not his ‘separate properties’ for the purpose of sub-s. (1) of S. 3 of the Act.

24. A recent decision of a Single Judge of the Madras High Court reported in — ‘Subramanian v. Kalyanarama Iyer’, AIR 1953 Mad 22 (B) was cited before us to show that the aforesaid decision of the Federal Court should be taken as binding only so far as the nature of the property that devolved on a sole surviving coparcener was concerned and that the observations in that judgment about the nature of the property that fell to a father on partition were not binding on us.

25. With great respect to the learned Judge who decided that case I am unable to accept the construction put by him on the judgment of the Federal Court. It is true that the Federal Court was not directly concerned with a case of property that fell to a father on partition with his sons. But the reasons given by their Lordships (quoted above) show that this class of property was treated practically on the same level as the property of a sole surviving coparcener.

26. Even the obiter of a Federal Court is binding on this Court unless they make it clear by appropriate expression that the view is a tentative one. This is absent in the discussions about the nature of the property that fell to a father on partition. We must therefore hold that the disputed property is not ‘separate property’ for the purpose of sub-s. (1) of the Act.

27. This conclusion however does not solve the difficulty. Two other questions are:

(i) If the properties do not come within the scope of sub-s. (1) of S. 3 can they be held to be ‘joint family properties’ within the scope of sub-s. (2) of S. 3?

(ii) Do the disputed properties form a separate class of their own to which the provisions of the Act do not apply at all?

28. In the aforesaid decision of the Federal Court, their Lordships have not categorically stated that properties of this class would come within the scope of sub-s. (2) of S. 3. But the following observation (already quoted) “The Act of course is intended to redress the widow's disabilities even in such a case; but that redress is provided by sub-section (2) and not by sub-section (1) of section 3” may lend some support to the argument that they were inclined to take the view that such properties would come within the scope of sub-s. (2) of S. 3.

29. But in that particular case, this question became somewhat academic because the last surviving coparcener died and his widow succeeded to his property under the ordinary Hindu Law. In the present case, however, if the ordinary rule of Hindu Law be applied, defendant No. 1 would get nothing at all. The plaintiff as the divided son of his father is his preferential heir to the exclusion of his mother (see the Illustration of Mulla's Hindu Law, 11th Edn., Article 341).

30. Doubtless, the plaintiff has not brought the suit for declaration of his exclusive title to the disputed properties as a preferential heir of his father. He has conceded that his mother is entitled to half share and from the judgment of the trial court it appears that it was further conceded that the provisions of the Act would apply to the present case. The controversy was as to whether sub-s. (1) of S. 3 would apply or sub-s. (2) of that section.

31. Hence, any discussion as to whether the property that fell to a father on partition with his only son is outside the scope of the Act would not strictly arise on the pleadings of the parties. Once it is assumed that the provisions of the Act apply to the present case add it is further held that by virtue of the Federal Court decision mentioned above sub-s. (1) does not apply it necessarily follows that sub-s. (2) applies and the disputed properties should be held to be point family properties for the purpose of that sub-section.

32. In view of the importance of the subject, however, we have thought it advisable to examine this question on its own merits instead of shutting out the plaintiff on the basis of his pleadings alone. On a fair construction of the Act it seems clear that it was meant to cover properties of all classes of Hindus whether they are governed by the Dayabhag law, Mitakshara law or customary law.

33. Both in sub-s. (1) and sub-s. (2) the following significant words are used, namely, “When a Hindu governed by any other School of Hindu Law or by customary law”. These words are comprehensive enough to include all classes of properties of Hindus by whatever school or custom they may be governed.

34. Neither in the preamble nor in any other section of the Act are found words which either expressly or by implication justify the inference that the Act was not intended to be exhaustive so far as various classes of properties of a Hindu dying intestate are concerned. The only class of property that is excluded from the operation of the Act is that described in sub-s. (4) of S. 3.

35. It is true, as pointed out by the Federal Court in the decision mentioned above, that the Act is not exhaustive so far as the conferment of better rights to women under all possible circumstances is concerned. Many cases of hardships to women which are not redressed by the Act can be easily imagined and some of these have been described in the Federal Court judgment.

36. But these instances arise from other causes and nut from the taut that all classes of properties of human dying intestate are not brought within the scope or the Act sub-ss. (1) and (2) of S. 3 when construed together should be taken as exhaustive or possible circumstance in which a male Hindu may the intestate leaving property or an interest in property.

37. The alternative view that the property of a Hindu father dying intestate alter partition with his son does not come within the scope of either sub-.s. (1) or sub-s. (2) of S. 3 but may be outside the scope or the Act altogether suffers from one very serious defect. The Act was specifically made by the Legislature to give better rights to women in respect of property.

38. The Legislature may be presumed to have been fully aware that amongst the Hindus governed by the Mitakshara school, partition between a father and his son is not uncommon. It will be difficult to assume that the Legislature overlooked the nature of the interest of the father in the property that fell to his share alter partition with his son and that it did not intend to confer any better rights on his widow in respect of that class of property.

39. I cannot imagine that while providing for better rights to women in respect of undivided joint family property or even self-acquired property or a Hindu male the Legislature overlooked altogether the claims of a widow of a person who had separated from his sons and left her in the same unsatisfactory position in which she was prior to the passing of the Act and allowed the ordinary rule of Hindu law to prevail thereby excluding her from inheritance in favour of her divided son.

40. A beneficent legislation of this type should not be so construed as to exclude a large class of Hindu widows from its benefits unless such a construction follows either from the express terms of lire Act or from necessary implication.

41. ‘Bhaoorao v. Chandrabhagabai’, AIR 1946 Nag 108 (C) was cited before us in support of the opposite view that properties of this type do not come within the scope of sub-s. (2) of S. 3. In that judgment there is no full discussion of the implications of sub-s. (2) of S. 3 and with great respect I am not inclined to accept Their Lordships’ view.

42. It was urged that it will be undue strain oil the language to say that the share which fell to a father on partition with his son is still ‘joint family property’ for the purpose of sub-s. (2) of S. 3. If, however, some of the decided cases be carefully examined, it will be noticed that there is nothing unusual in so describing such properties.

43. These properties are easily distinguishable from other properties which the same father might have inherited, say, as the heir of a collateral. The latter properties are undoubtedly his separate properties in the strict sense of the term. But the former have always the potentiality of becoming joint family properties the moment a son is born to him after partition or if his widow makes an adoption later on.

44. Doubtless, in the present case so long as the plaintiff is alive there could be no question of defendant No. 1 adopting a son to her deceased husband; but the possibility that the plaintiff's line might become extinct during the life-time of defendant No. 1 (though none wishes for such a contingency) cannot be wholly excluded and as the parties are governed by the Madras School of Hindu Law (being Andhras) defendant No. 1 may, if the wile and sous of the plaintiff predecease him and he also subsequently dies get the right to adopt a son to her deceased husband under some circumstances.

45. In such a contingency the property would become joint family property. For the purpose of classification therefore the property that has devolved on a sole surviving coparcener or oil a Hindu father after partition with his son forms one class distinct from the properties which were acquired by them out of their own earnings or those which are inherited by them from their collaterals which are strictly speaking ‘self-acquired properties’.

46. There seems no undue strain on the language to describe the former class of properties as joint family properties whereas the latter class would be separate or sell-acquired properties in the strict sense of the term. For instance, in the well-known Privy Council decision reported in — ‘Anant v. Shanker’, AIR 1943 P.C 196 (D), two classes of properties devolved on the last surviving coparcener, namely, Keshav. One class related to Watan properties which devolved on him from his father and grandfather.

47. The other class related to the properties inherited by him from his uncle Narayan. Their Lordships of the Privy Council distinguished these two classes of properties by referring to the former as ‘joint family property’ and the latter as ‘separate property’ as will be clear from the following passage:

“But it is necessary to consider this last mentioned ground of claim in order to decide whether the plaintiff's adoption has divested the defendant of these two parcels of land — lands which were ‘not in Keshav's hands joint family property’ but his separate property and in which Bhikappa at no material time had any interest whatever.”

48. If the expression ‘separate property’ be taken to mean the property over which Keshav Trad absolute disposing power, then the property which devolved on him as a sole surviving coparcener from his father and grant-father would have come within this class. But Their Lordships referred to that property as ‘joint family property’ in his hands.

49. Again, in a recent decision of the Supreme Court reported in — ‘Srinivas Krishnarao Kango v. Narayan Devji Kango’, AIR 1954 S.C 379 (E) where the aforesaid Privy Council decision was fully discussed, the two classes of properties were also described as ‘joint family or ancestral property’ on the one hand and ‘separate property’ on the other. I may quote the following passages:

“In ‘Anant v. Shankar’, (D), the Privy Council dissented from this view, and held that the coparcenary must be held to subsist so long as there was in existence a widow of a coparcener capable of bringing a soil into existence by adoption and if she made an adoption., the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as heir of the last coparcener. In substance, the estate in the hands of such heir was treated as ‘impressed with the character of coparcenary property’ so long as there was a widow alive who could make an adoption.”

“When once it is held that the coparcenary subsists so long as there is a widow of a coparcener alive, the conclusion must follow that the adoption of Anant by Gangabai was valid and operated to vest in him the ‘joint family’ properties which had devolved on Shankar……………. ‘Anant Bhikappa v. Shankar Ramchandra Patil’ (D) must, in our opinion, be taken to decide that the doctrine of relation back will apply not only as regards what was “joint family estate’ but also properties which had devolved by inheritance from a collateral.”

50. It is true that these observations were made while discussing the properties that devolved on a sole surviving coparcener from his father and grand-father at a tune when there was a widow capable of making an adoption. But there is no distinction in principle between the case of a sole surviving coparcener and a Hindu father who had effected partition between himself and his son. In respect of both of them the possibility of a son being subsequently born is not excluded. Similarly, the possibility that their widows might subsequently make an adoption in some circumstances, especially when they are governed by the Bombay or Madras School of Hindu law, also exists.

51. Mr. Mohapatra then contended relying on S. 223(4) of Mulla's Hindu law (11th Edition) that the property of a Hindu father obtained on partition with his sons may be ‘joint family property’ is regards male issues that may be born to him after such partition but that as regards his ‘other relations such as his wife or divided sons, it will be only separate property. This is doubtless the correct rule so far as general Hindu law is concerned, but it cannot be applied literally in construing the provisions of a piece of beneficent legislation intended to give better rights to women. Property which is not ‘separate property’ in the strict sense of the expression and which has the potentiality of becoming ‘joint family property’ on the happening of an event such as the birth of a son, or the valid adoption by a widow, is ‘impressed with the character of coparcenary property’ (to quote the words of Their Lordships of the Supreme Court) and should be held to be ‘joint family property’ within the meaning of Sub-s. (2) of S. 3 of the Act.

52. I am therefore of the view that the disputed properties were ‘joint family properties’ within the meaning of Sub-s. (2) of S. 3 of the Act and that after the death of Ramayya Naidu, defendant No. 1 as his widow is entitled to the same interest in them which he had, that is, the entire sixteen annas interest. The plaintiff's suit for partition must fail. The appeal is allowed, the judgment and decree of the lower Court are set aside and the plaintiff's suit is dismissed with costs throughout. But the order passed by the lower Court regarding the conditions under which the sale deed executed by defendant No. 1 in favour of defendant No. 2 would be set aside, would stand.

Mohapatra, J.:— I agree.

V.B.B

53. Appeal allowed.