1. This application raises an interesting question which depends on a true construction of the provisions of the Hindu Women's Rights to Property Act, 1937, but which apparently is one of first impression. The facts necessary to be related are shortly as follows:—

One Ganes Chandra Bose who was a Hindu governed by the Dayabhaga School of Hindu Law and was possessed of some properties died intestate in November, 1943, leaving him surviving his widow Binodini, two sons, Jiban and Tincori, and a daughter-in-law Kamala being the widow of his pre-deceased son Sushil. On March 13th, 1944, the daughter-in-law Kamala filed the present suit for a declaration of her share in the estate of Ganes and for partition and other incidental reliefs. The Defendants were Ganes's two sons, Jiban and Tincori and his widow Binodini. On an application by the Plaintiff for the appointment of a receiver an order was made on March 30th, 1944, directing the Defendants to pay to the Plaintiff the sum of Rs. 25 per month subject to adjustment afterwards. On November 13th, 1944, a preliminary decree was passed declaring that each of the parties was entitled to ¼ share of the joint properties, the shares of the Plaintiff Kamala and the Defendant Binodini being held by them as Hindu widows during their respective lives and appointing a Commissioner of partition, with liberty to sell such of the properties as were not capable of partition by metes and bounds. The returnable date of the writ of commission was extended from time to time. It has been found that the premises Nos. 8 and 10, Keshab Chandra Sen Street cannot be conveniently partitioned and it has been decided that the same should be sold. The Commissioner of partition, however, was discharged for personal reasons and another has been appointed in his place. Notification and conditions of sale and abstract of title are in course of preparation by the new Commissioner. In the meantime Binodini the widow of Ganes has died and the question has arisen as to what is to happen to the ¼ share to which, by the preliminary decree, Binodini was declared entitled as a Hindu widow. On January 9th, 1946, the Plaintiff Kamala took out the present notice of motion for recording the death of Binodini and amending the cause title and for an order declaring that she was, in the circumstances, entitled to ⅓ share and if necessary for amending the preliminary decree dated November 13th, 1944, accordingly and directing the Commissioner of partition to allot to her ⅓ share of the joint properties. She has also asked for enhancement of the monthly allowance from Rs. 25 to Rs. 50 and for extension of the returnable date of the writ of commission by another six months. The surviving Defendants have no objection to the death of Binodini being recorded and the cause title being amended accordingly but they dispute the claim of the Plaintiff to any share in the ¼ share that had been given to Binodini by the decree herein. They maintain that on the death of Binodini that ¼ share which she held as a Hindu widow devolved on them as the reversioners of Ganes. They also oppose the Plaintiff's claim to an enhanced allowance.

2. There is no dispute that under the Hindu Law the widowed daughter-in-law has as against the heirs of the father-in-law only a right of maintenance out of his estate. It is conceded that under the Hindu Law even the widow is entitled only to maintenance and right of residence out of the deceased husband's estate. Although on a partition amongst the sons the widow gets a share equal to that of a son, the widow herself has no right to demand a partition. It is common ground that the Hindu Women's Rights to Property Act, 1937, has introduced important changes in the Hindu Law of inheritance by giving the three specified females better and higher rights than what were given to them under the Hindu Law. The dispute is as to the nature, scope and extent of the rights that have been conferred on them by this Act. It is necessary, therefore, to examine the relevant provisions of the Act to find out the true meaning thereof.

3. The object of the Act is to give better rights to women in respect of property. The Act applies to the whole of British India. By sec. 2, notwithstanding any rule of Hindu law or custom to the contrary, the provisions of sec. 3 have been made applicable where a Hindu dies intestate. Sec. 3 which is the main section consists of four sub-sections. For the purpose of the present case which relates to the estate of a Hindu governed by the Dayabhaga law, it will be sufficient to set out the following relevant portions of sub-secs. (1) and (3):

“3. (1) When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property…. his widow, or if there is more than one widow, all widows together, shall, subject to the provisions of sub-sec. (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:

Provided that the widow of a predeceased son shall inherit in like manner as a son, if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son;

Provided further …………

(3) 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,”

4. When Ganes, a Hindu governed by the Dayabhaga School, died intestate in November, 1943 leaving a widow, two sons and the widow of a predeceased son without male issue the question of succession to his estate arose. The Act was admittedly applicable to the case. Under sub-sec. (1) of sec. 3 his widow Binodini became entitled in respect of Ganes's property to the same share as a son. Under the first proviso to sub-sec. (1) Kamala, the widow of the predeceased son without a son or son's son, inherited in like manner as a son. By sub-sec. (5) the interest devolving on the widow Binodini and the widowed daughter-in-law Kamala was the limited interest of a woman's estate. Thus on the death of Ganes his estate devolved on his two sons, his widow and the widow of his predeceased son in equal shares, the ¼ shares of each of the two females being held by them as a Hindu widow and the preliminary decree passed in this suit declared the shares accordingly. So far there is no controversy. Binodini has, however, died since the passing of the preliminary decree. What is to happen to the ¼ share to which she had been declared entitled?

5. Under the indigenous Hindu Law a woman by reason of her being the lawfully wedded wife or patni of her husband acquired from the moment of her marriage a sort of co-ownership in her husband's properties. This co-ownership of the wife, was, however, subordinate to the ownership of the husband as long as he lived and the wife could not demand a partition. It is this co-ownership that entitled her to a share on a partition of the husband's properties after his death, for under the Mitakshara partition did not create any right but proceeded upon the footing of pre-existing rights. As the widow got a share in recognition of her co-ownership and not by inheritance there was no question of there being a reversioner as regards such share. Indeed under the Mitakshara the share allotted to the widow on a partition amongst the sons was regarded as her stridhan property and devolved on her stridhan heirs. All this conception of the Hindu Law which recognised the rights of women in their husband's properties was, however, whittled down by judicial decisions. Thus it was held by the Privy Council in Pratapmull v. Dhanabati(1) that although a widow got a share on partition amongst her sons, she could not herself demand a partition. It was likewise settled by the Privy Council in Debi Mangal Prasad v. Mahadeo(2) that the share given to the widow did not become her stridhan so as to pass to her heirs on her death. It was assumed that this share had been carved out of the shares of the sons and given to her in lieu of maintenance and was to be held by her as a Hindu widow, so that on her death, this share, if not consumed by her, would go to the sons or their legal representatives who were declared to have a vested remainder in that share. This was the position of the Hindu widow with reference to her deceased husband's property under the Hindu Law as administered by the Courts. There can be no doubt that the rights of a Hindu widow was considerably curtailed, as I pointed out in my judgment in Indu Bhusan Chatterjee v. Mrityunjoy Paul(3). As regards the wife of a son under the Mitakshara she did in the right of her husband acquire a right in the ancestral property since her marriage in a subordinate sense. In the self-acquired property of the father-in-law she acquired no rights. Indeed, the father-in-law was under no legal obligation even to maintain her out of his separate property although he was morally expected to do so. On his death the separate properties devolved on his heirs and the law imposed a legal obligation on the heirs to maintain the widowed daughter-in-law.

6. The Hindu Women's Rights to Property Act, 1937, was enacted to give better rights to women in respect of property. By sec. 3, sub-sec. (1) the widow is declared entitled to the same share, as a son but by sub-sec. (3) this share is to be the limited interest known as a Hindu women's estate with a right of claiming partition. She is thus put in the same position as a son except that her rights are subject to certain restrictions as regards alienation and that on her death the share goes not to her stridhan heirs but to those who would inherit had the last male owner, i.e, the husband died at the moment of her death. There is nothing in the Act to suggest that the sons or their representatives have a vested remainder in this share. The provision of sub-sec. (3) making the widow's share the limited interest of a woman's estate has the effect of giving the heirs of the husband a spes succession's during the life-time of the widow instead of a vested remainder which the sons under the Hindu Law as administered by the Courts would have had in the share given to the widow on a partition amongst themselves. This being the position it has to be ascertained who would be heirs of the husband had he died simultaneously with the widow? Turning to the first proviso to sub-sec. (1) I find that the widow of the predeceased son inherits “in like manner” as a son or a son's son as the case may be. Whether the son's right to get the widow's share is to be regarded as a vested right accruing at the date of the death of the husband (which as at present advised I doubt) or is to be treated as a mere spes successionis which ripens into a right on the widow's death, I do not see how the widowed daughter-in-law can be excluded from participating in that share. To exclude her will amount to nullifying the proviso which says that she inherits “in like manner” as a son or son's son. I do not see any logic in the contention that the operation of the Act is exhausted after its first application, that is to say, as soon as a share is given to the three specified females or that the statutory heirs do not come within the expression “reversioner” as used and understood in Hindu law. This Act, so far as a widow of a predeceased son and a widow of a predeceased son of a predeceased son are concerned, expressly provides that they inherit “in like manner” as a son or son's son. In other words, they are put in the category of heirs along with a son or son's son. I see no reason for limiting the operation of the Act to the point of time when the owner died. In my judgment they are made heirs for all purposes of inheritance, subject, of course, to the limitations prescribed by sub-sec. (3). Take the Hindu Law of Inheritance (Amendment) Act, 1929, which applies to persons governed by the Mitakshara Law. Under Mitakshara Law a son's daughter or a daughter's daughter was not recognised as heir except in Bombay and Madras. Under that Act a son's daughter and a daughter's daughter are entitled to rank in the order of succession next after the father's father and before the father's-brother wherever Mitakshara law applies. Now suppose a person governed by the Mitakshara Law dies leaving a widow and a son's daughter and the father's brother and no nearer heir. The widow inherits but she takes the limited interest of a woman's estate. Then suppose the widow dies while the son's daughter and the father's brother are alive. Here also it will have to be ascertained who will be the heir of the husband had he died at that time. Can it be suggested that the operation of the Act was limited to the time of death of the last male owner or that a son's daughter being a statutory heir cannot be a reversioner under the Hindu law and must therefore be excluded and the father's brother who is an heir under the Hindu law will take the estate? The answer is obviously in the negative. I do not see why the position should be different under the Hindu Women's Rights to Property Act, 1937. It is said that the Act gives better right to the widow when it gives her a share to be held by her as a limited owner and what is to happen to that share after her death does not involve any question of giving better right to the widow. But when besides the widow the deceased leaves also a widowed daughter-in-law, then on the death of the widow the question of better rights of the widowed daughter-in-law does arise.

7. After considering the arguments advanced by learned Counsel on both sides with considerable ability and clarity and construing the Act, imperfect and defective as it is in its language, I have come to the conclusion, for reasons stated above, that on the death of Binodini the succession opened out and all those who would have inherited the estate of Ganes had he died at that point of time will take that share irrespective of whether they inherit under the Hindu Law or under the Act. I therefore make an order in terms of cls. (1), (2), (3) and (4) of the notice of motion.

8. As regards cl. (5) of the notice of motion sufficient materials as to the income and expenditure of the estate have not been placed before me and I do not think it would be right, at this stage, to accede to this prayer.

9. The returnable date of the commission has been extended several times.

10. It will have to be extended again. I consider that more than three months ought not to be necessary, especially as the properties have to be sold and not to be actually divided by metes and bounds. I therefore extend the time up to the 30th June next and direct the Commissioner to proceed expeditiously.

11. The costs of this application will be costs in the partition proceedings.

Solicitors: H.K Dutt for the Applicant; N. Dey for the Respondent.