Nandkumari Devi v. Bulkan Devi

Beevor, J.:— These two appeals, both filed by Dulhin Nand-kumari Devi, arise out of two suits involving claims to property which arose on the death of one Babu Narayan. Sao who died on the 10th or 11th of September, 1938.

Although there are certain disputed questions of fact, the main question which has been argued in these appeals relates to the meaning of the provisions of the Hindu Women's Rights to Property Act, 1937 (XVIII of 1937) as amended by Act XI of 1938 and its application to the facts of these cases.

Narayan Sao had one son Ramji who pre-deceased him in 1937, and when he died he left the following persons whose claims to the property formed the subject-matter of this litigation:—

(1) A widow, Bulkan Devi,

(2) Three daughters, Ram Kumari Devi, Nandkumari Devi and Sabitri Devi, and

(3) Rama Devi, the widow of his pre-deceased son Ramji. Admittedly at the time of Narayan Sao's death he was the sole surviving co-parcener of the joint Hindu family of which his son was also a co-parcener until his death in 1937, and it is not the case of any of the parties that, there was any posthumous son or any possibility that after the death of Narayan Sao a further co-parcener could be introduced into that family by adoption or otherwise.

Soon after the death of Narayan Sao disputes arose between the ladies of the family named above over the property left by Narayan Sao. Rama Devi brought Title Suit no. 12 of 1940 in forma pauperis claiming that Bulkan Devi was not the widow of Narayan Sao but of his elder brother and claiming the entire properties in suit valued at over three lacs of rupees as the sole heir of Narayan Sao. She claimed alternatively that if Bulkan Devi were held entitled to a share as the widow of Narayan Sao, her share might be partitioned.

The trial court held that Bulkan Devi was widow of Narayan Sao and decreed the suit of Rama Devi for half share in the properties and for partition of that share. Rama Devi did not appeal against that decision and has not in this Court disputed the finding that Bulkan Devi was widow of Narayan Sao.

Nandkumari Devi brought Title Suit no. 15 of 1939 for a declaration that she and her two sisters were the heirs of Narayan Sao and as such entitled to the properties which; she claimed, were in their possession. This suit was dismissed by the lower court.

Of the two appeals filed by Dulhin Nandkumari Devi, Appeal no. 109 arises out of Title Suit no. 15 of 1939 and Appeal no. 136 out of Title Suit no. 12 of 1940.

I have already mentioned that the lower court held that Buikan Devi was widow of Narayan Sao and this finding has not been disputed at the hearing of these appeals. Bulkan Devi, however, died during the pendency of these appeals in September 1943. In the lower court it was also contended on behalf of the present appellant that Rama Devi had married again but the finding of the lower court was against the appellant on this point, and she has not pressed this contention again on appeal.

The main question for decision in these appeals is whether, on the death of Narayan Sao, Rama Devi was entitled to succeed to a share in the property under the provisions of section 3(1) of the Hindu Women's Rights to Property Act, 1937, as amended in 1938. This section runs as follows:—

“3.(1) When a Hindu governed by the Dayabhaga School of Hindu law dies 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-section (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 that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.”

The parties in this case are admittedly governed by the Mitakshara School of Hindu Law.

The first contention of Mr. L.K Jha on behalf of the appellant is that the property in question was joint family property while Narayan Sao's son was alive and that it did not lose its character after the death of that son and, therefore, it was not separate property for the purpose of section 3(1) of that Act.

It will be best in my opinion to determine first the character of the property during the life-time of Narayan Sao's son. The learned Subordinate Judge has held that the properties were the separate properties of Narayan Sao. His reasons for this conclusion were: first, that Narayan Sao was the sole earning member of the family, the son being too young to earn; and secondly, that the only property which was shown by the evidence to have come to Narayan Sao from his father consisted of two houses and there was nothing to show that any income was received from those two houses. He referred to the fact that

“some of the papers and the list of the inventories.”

Stand, in the joint name of the father and the son but he held that if the father was the sole earning member of the family the properties could not be held to be joint with the son

“merely because out of love and affection for his son the father allowed his name to be incorporated with himself.”

Now it sems to me that the learned Subordinate Judge has overlooked the fact that property, which was originally the separate or self-acquired property of a member of a joint family, may become joint family property if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it; and he has, therefore, failed to consider whether Narayan Sao dealt in this way his separately acquired property. It seems to me important to notice that there was no other co-parcener in the joint family besides Narayan Sao and his son. Had there been other co-parceners in the family such as brothers or cousins of Narayan Sao and their descendants, then Narayan Sao's action in getting his son's name entered with his own in the documents relating to property would have been intelligible, if he had desired to keep his separately acquired property for himself and his son as against other co-parceners of the joint family; but as Narayan Sao and his son were the only co-parceners, there could, I think, be no intelligible reason for Narayan Sao to get his son's name entered with his own in the documents relating to the properties unless he intended to benefit his son by that action, and I, therefore, come to the conclusion that Narayan Sao's action showed that he intended to benefit his son in this way; and this can only mean that he intended to hold the property jointly with his son. In other words, he threw his separately acquired properties voluntarily into the common stock. All the property, therefore, became joint family property during the life-time of Narayan Sao's, son.

Mr. L.K Jha for the appellant urged that the character of the property was not changed after the death of Narayan Sao's son and he, therefore, contends that the property in question was not separate property within section 3(1) of the Hindu Women's Rights to Property Act.

The nature of a Hindu joint family has very recently been considered by the Judicial Committee of the Privy Council in Anant Bhikkappa Patil v. Shankar Ramchandra Patil(1), in which, at page 239, they cited with approval the following passage from a judgment of the Nagpur High Court in Bajirdeo Tukaram Kumbi v. Ramkrishna(2).

“We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member.”

It follows that although there may be at a particular time only one surviving co-parcener of a Hindu joint family there may still be “joint family property” or “co-parcenary property” in which any new male member introduced into the joint family will take an interest by birth or adoption. At the same time it is well settled that so long as there is only one surviving male member of the Hindu joint family his power of alienating the family property is unrestricted.

Mr. L.K Jha's argument is that “separate property” in section 3(1) of the Hindu Women's Rights to Property Act is contrasted with “joint family property” or “co-parcenary property” as described above. We have to decide what is the meaning of the words “separate property” in section 3(1). There are undoubtedly great difficulties in applying accurately English words, to the concepts of Hindu law, a difficulty which was keenly felt by Mr. Justice Beaman and expressed in his judgment in Karsondas Dharamsey v. Gangabai. Mr. L.K Jha stated that, so far as he knew, there is no single Sanskrit word or phrase in the Hindu law texts which covers “separate property” as opposed to “joint family property” or “co-parcenary property” and also that there appears to be no single Sanskrit word or phrase for “joint family property” or “co-parcenary property” which is wider than apratibandha daya (unobstructed heritage). The word “separate” has certainly been used in a number of reported decisions of the High Courts and of the Privy Council as contrasted with joint family property or co-parcenary property, but the meaning of the word as used in those decisions is to be ascertained from the context, with particular reference to the questions which were actually for decision in those cases. The word “separate” has, however, also been used in another sense, as for example by Phear, J. in Rajah Ram Narain Singh v. Pertum Singh, when he stated:

“The distinction between joint and separate property under the Mitakshara law is of a temporary, not of an abiding, character. Property is joint when it belongs to all the members of a joint family; and separate when it belongs only to one member. As long as it is separate and in the condition of self-acquired property, the holder has no one to consult in regard to the disposal of it except himself.”

It is easy to show that the word “separate” has not been consistently used by modern writers on Hindu law, for example, in Mulla's Principles of Hindu Law, 9th edition, 1940, section 230 headed “separate property” he includes in separate property under heading no. 7 “property held by a sole surviving co-parcener when there is no widow in existence who has power to adopt”. On the other hand, in section 257 he states that a person who for the time being is the sole surviving co-parcener is entitled to dispose of the co-parcenary property as if it were his separate property. Again in Sarbadhikari's Tagore Law Lectures on the Principles of the Hindu Law of Inheritance, second edition, at page 644 it is stated: “But by the nature of the case, the joint family must commence, and also must end, when it does end, in an individual who holds the property in a separate condition.” Again Mayne in his Hindu Law and Usage, 10th edition, section 285, at page 365 stated: “Property which a man takes at a partition will be his separate property as regards those from whom he has severed but will be ancestral property as regards his own issue. So too family property vested in the last surviving male member of a co-parcenary will be his separate property subject to its becoming at any moment co-parcenary property when he has a male issue or when an adoption is made to him or to a predeceased co-parcener in the family.”

We have, however, not to determine in what sense Judges or text writers have used the word “separate property”, but to decide in what sense those words have been used by the Legislature in the Hindu Woman's Rights to Property Act. These words do not seem to have been used in previous Acts of the Legislature dealing with Hindu law, unless an exception is to be made in the case of section 3 of the Hindu Grains of Learning Act, 1930 (Act XXX of 1930) which begins with the words

“Notwithstanding any custom, rule or interpretation of the Hindu law no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reason of—”.

I am very doubtful whether it is permissible to construe this, Act together with the Hindu Women's Rights to Property Act as being in pari materia, but if it were permissible to do so, the use of the word “exclusive” in the section quoted would suggest that property-might be separate though it was not the exclusive property of the acquirer.

In order to Ascertain the meaning of the words “separate property” in section 3(1) of the Hindu Women's Rights to Property Act we are entitled, in fact we, are bound, to consider the Act as a whole and, therefore, to consider whether other portions of the Act throw any light on the meaning of section 3(1). The preamble of the Act runs:

“Whereas it is expedient to amend the Hindu law to give better rights to women in respect of property.”

Mr. L.K Jha pointed out that when the last surviving co-parcener of a Mitakshara joint Hindu family dies leaving a widow, the widow takes the estate under the existing Hindu law, and he urged that there was no necessity to give her better rights in such a case and that, therefore, it was found unnecessary to provide for such a case in section 3(1) of the Act. In this argument he has ignored any claims of a widowed daughter-in-law; and he was unable to suggest any reason why a widowed daughter-in-law should be given a share in the self-acquired property of her father-in-law (which had not lost its character and had been merged in the joint family property) and yet should be denied any share in the joint family or co-parcenary property left by the last surviving co-parcener.

His argument really is that “separate property” in section 3(1) is a description of property bearing a particular character, which character is determined by the manner in which the intestate or his predeceased co-parceners acquired, their title to the property. The alternative interpretation of these words is that they refer not to the character of the property itself, but to the mode in which the intestate possessed or enjoyed them. If this interpretation is correct, the words “separate property” mean property which the intestate possessed or enjoyed separately, i.e, without other co-parceners participating with him.

In a Mitakshara Hindu joint family having more than one co-parcener, no co-parcener has a defined share prior to partition. He has merely an interest in the joint family or co-parcenary property. Section 3(2) of the Act runs:—

“When a Hindu governed by any school of Hindu law other than the Dayabhaga 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.”

It seems to me that section 3(1) and 3(2) taken together, are intended to be exhaustive of the possible circumstances in which a male Hindu may die intestate leaving property or an interest in property. It will be noticed that the words an interest in a Hindu joint family property “in section 3(2) do not refer merely to property bearing a particular character, as described above though the words “Hindu joint family; property” alone may refer to property bearing such particular character. The addition of the words “an interest in” shows that the whole phrase “an interest in a Hindu joint family property” has a reference also to the mode of possession or enjoyment of that property. I think it is natural to conclude that the words “separate property” in section 3(2) also have a reference to the mode of possession or enjoyment. In other words the phrase “separate property” in section 3(1) is contrasted not with the words “joint family property” in section 3(2) but with the words “an interest in a Hindu joint family property”, laying particular emphasis on the word “interest”. The sole surviving co-parcener of a Mitakshara joint Hindu family has not merely an interest in the property, but holds the property exclusively or separately whatever its character. I, come, therefore, to the conclusion that the words “separate property” in section 3(1) mean property which the intestate held separately in the sense that he held it without the participation of other coparceners.

The next contention of Mr. L.K Jha for the appellant was that as the rights given by that section to the widow of at predeceased son are given by means of a proviso to the main portion of the sub-section (which gives rights to the widow of the intestate), the existence of such a widow is a condition precedent to the accrual of any right to the widow of a predeceased son under the proviso. It is not necessary, however, to consider this point in the present case because there was actually a widow of Narayan Sao, viz., Bulkan Devi, and the condition, if actually necessary, has been fulfilled.

The next contention of Mr. L.K Jha is based on the words in section 3(1):

“his widow…………shall…………be entitled in respect of property in respect of which he dies intestate to the same share as a son”.

His first argument in this connection may be summarised in the following form:—

If the intestate left no son, there was no son to take a share; a son, therefore, takes no share; the widow takes, the same share” as a son which in this case is nil. This argument is ingenious, but in my opinion quite unsound. Mr. L.K Jha's alternative argument is that if he assume the existence of a son, one share must be reserved for this son whose existence we have assumed, and, therefore, the widow even in the absence of any widow of a predeceased son will take only half the property. This argument is, in my opinion, equally invalid. I think it is quite clear that the words “the same share as a son” in section 3(1) mean “the same share as if she were a son”.

Mr. L.K Jha also at one stage of his argument suggested that the wording of the first proviso to section 3(1) required that the predeceased son of the intestate should have had a son whether that son survived him or not before the widow of such a predeceased son could claim under that proviso. He did not, however, press this point when we indicated that we were not disposed to accept this contention.

Having dealt now with the questions of law raised on behalf of the appellant, the application of the Hindu Women's Rights to Property Act to the property in question on the death of Narayan Sao is clear. Bulkan Devi as widow took under section 3(1) the same share as if she had been a son, and Rama Devi, the widow of Ramji, the predeceased son of Narayan Sao, inherited under the first proviso to that sub-section in the like manner as a son of Narayan Sao, as Ramji left no son. Thus Bulkan Devi and Rama Devi each took half the property. Under section 3(3) of the Act the interests devolving on Bulkan Devi and on Rama Devi are limited interests, known as the Hindu women's estate, provided that each of them has the same right of claiming partition as a male owner.

These findings are sufficient to dispose of Title Appeal no. 136, but in Title Appeal no. 109 certain further points have been raised owing to the death of the widow, Bulkan Devi, during the pendency of the appeals. It is urged on behalf of the appellant that even if she and her sisters had no title in respect of this property during the life-time of Bulkan Devi, the share taken by Bulkan Devi as widow of Narayan Sao came to the appellant and her two sisters after Bulkan Devi's death and that, therefore, the appellant is at least entitled to a declaration of her right to one-sixth share in the property. As against this, on behalf of the respondent, Rama Devi, it is urged that the appellant is not entitled to such a declaration for two reasons: first, that the rights, if any, which may have accrued to the appellant after the death of Bulkan Devi are outside the scope of Title Suit 15 of 1939 out of which Title Appeal no. 109 arises, and secondly on the ground that on the death of Bulkan Devi the share which she took on the death of Narayan Sao passes to Rama Devi.

The argument on behalf of Rama Devi in support of the second contention is that under the first proviso to section 3(1) of the Hindu Women's Rights to Property Act the widow of a predeceased son shall inherit in like manner as a son if there, is no son surviving of such predeceased son. In this case Ramji, the predeceased son of Narayan Sao, left no surviving son. It is urged that on the death of Narayan Sao's widow a son of Narayan Sao would have had a prior right to inherit the estate as against the daughters, i.e, the appellant and her sisters. It is, therefore, contended that under the first-proviso to section 3(1) Rama Devi also has such a prior right. This argument is in my opinion fallacious. The main portion of section 3(1) runs:—

“When a Hindu governed by the Dayabhaga School of Hindu law dies 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-section (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son.

The reference in this sub-section to “his widow” shows that the words “a Hindu” in that sub-section mean a male. Hindu and do not include the case of a female Hindu. Section 3(1), therefore, applies only when a male Hindu dies and has no application, on the death of a female Hindu. The claim of Rama Devi is made under the first proviso to section 3(1). The proviso cannot be read as an independent provision of the law so as to extend the scope of the main sub-section [sub-section 3(2)]—vide R. v. Dibdin. The proviso, therefore, can only take effect on the death of a male Hindu and not on the death of a woman. Rama Devi was, therefore, entitled to take a share under that proviso on the death of Narayan Sao but not on the death of Bulkan Devi.

It seems clear, therefore, that on the death of Bulkan Devi the half share in the properties held by her passed to the appellant and her two sisters. The appellant and her sisters, however, had no right so long as Bulkan Devi was alive and the appellant's suit was framed to obtain a declaration of rights which she claimed during the life-time of Bulkan Devi. On that point she has failed. It is true that by reason of the death of Bulkan Devi she has now a fresh cause of action giving her fresh rights. I do not, however, think that it would be proper to grant her a decree declaratory of such rights in a suit brought for a declaration of entirely different rights, even though it happens that the rights claimed in the suit and the rights which have subsequently accrued to her relate to the same property.

For the above reasons both appeals fail and are dismissed with costs to the respondent, Mosammat Rama Devi. There will be a single hearing fee for the two appeals to be calculated on the valuation of appeal no. 109.

Fazl Ali, C.J:— I agree.

K.D

Appeals dismissed.