Jadaobai v. Puranmal

1. One Bhikamchand Marwadi obtained in Civil Suit No. 39 of 1932 decided on 28th August 1934 a money decree against one Puranmal Marwadi. Bhikamchand died on 29th September 1941 leaving a widow Jadaobai and a son Hamarain. The son applied for execution of the decree. Later on the widow also applied for being joined as a party to the execution, on an objection being taken by the judgment-debtor that she was a necessary party to the execution application under the Hindu Women's Bights to Property Act. Then the judgment-debtor contended that she could not execute the decree without obtaining a succession certificate. On behalf of the widow it was contended that a succession certificate was not necessary in her case.

2. The only question for determination in the case is whether a succession certificate is necessary.

3. The lower Court has held that it is necessary. Mt. Jadaobai has come up in appeal against this order under Section 47 of the CPC. Section 3 of the Hindu Women's Rights to Page: 244Property Act, 1937, as amended later on is as follows:

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

(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. It is contended that the widow does not take any property by succession and therefore she is not liable to produce a succession certificate for the execution of the decree of her husband. Reliance is placed on A.I.R 1943 Mad. 246 (’43) 30 A.I.R 1943 Mad. 246 , 206 I.C 356 , (1942) 2 M.L.J 668 where Horwill, J. observed:

“The widow does not obtain the right given under this section (Section 3 of the Hindu Women's Bights to Property Act, 1937) by survivorship. She was not a coparcener before her husband's death and she was not one afterwards. I do not however think that it follows that because the widow does not obtain her right by survivorship that she must obtain it by inheritance. The effect of S. 3, cls. (2) and (3) may be regarded as a survival of the husband's persona in the wife, giving her the same rights as her husband had except that she can alienate property only under certain circumstances. As the widow did not inherit her right, no succession certificate is necessary.”

5. This view no doubt supports the contention of the appellant. Section 214 of the Succession Act, enacts:

“(i) No Court shall—(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt,

6. Except on the production, by the person so claiming, of—

(iii) a succession certificate granted under Part 10 and having the debt specified therein,….”

7. It is on this section of the Succession Act that the judgment-debtor bases his contention and argues that this widow is a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, and therefore she cannot proceed to execute this decree against him unless she produces a succession certificate. Horwill, J., in the Madras case cited above holds that the widow under the Act does not obtain the right given to her by the section by survivorship as she was not a coparcener before her husband's death and did not become one immediately after his death. It is only in cases where a plaintiff or a decree-holder claims by survivorship that he cannot be compelled to take out a succession certificate because a person claiming by survivorship does not get the property on succession to a person like the widow who has been given a right on the death of her husband, and a person on whom an interest devolves on the death of her husband cannot be regarded as obtaining the interest otherwise than by succession. During her husband's life-time she had no interest to recover this debt; she gets an interest to recover it only on the husband's death because of the enactment which enables her to succeed to the position which her husband occupied during his own life-time. The Act 19 of 1937, was enacted with a view to giving better rights to women in respect of property. There are no words in the Act by which she can be deemed to be a coparcener, and the interest which devolves on her is declared to be a ‘Hindu woman's estate.’ It is thus clear that she does not take the property by survivorship. Consequently it has to be held that she takes it by succession, and by succession she takes a limited estate known as the ‘Hindu woman's estate.’

8. In our view, reading cls. (2) and (3) of S. 3 together, the interest of the husband in the property devolves on a Hindu widow on the death of her husband, but that interest is a limited one known as the ‘Hindu woman's estate.’ A further right is conferred on her of demanding a partition from the other coparceners of the husband. The use of words indicating devolution of interest on the death of the husband leave no room for doubt that what was intended was succession on the death of the husband. That the object of the Act was to confer new rights of succession on women is the interpretation placed upon the Act in Mayne's Hindu Law and Usage, Edn. 10 (edited by Srinivasa Iyengar). No doubt, the Act alters the order of succession and involves far reaching consequences. It is true it may lead to certain anomalies as was argued before us; but so far as this particular case goes we are only concerned with finding out whether she claims to execute the decree by right of survivorship or on succession. It is not argued before us that she claims it by survivorship, nor could it be so argued. Horwill, J., in the Madras case quoted above, is of the opinion that the mere fact that the widow does not obtain her right by survivorship does not lead to the conclusion that she obtains it by inheritance. If she does not-claim it by inheritance we fail to understand Page: 245how she is claiming it in the face of the clear wording of the Act. The observations that the effect of S. 3, cls. (2) and (3), may be regarded as a survival of the husband's persona in the wife, giving her the same rights as her husband had except that she can alienate property only under certain circumstances, do not indicate very clearly what was really intended to be laid down. Survivorship having been ruled out the only other mode by which she will be clothed with the rights of her husband in the property, though to a limited extent, would be by succession or inheritance if she claims under the Hindu Women's Fights to Property Act. We respectfully dissent from the view taken in A.I.R 1943 Mad. 246 (’43) 30 A.I.R 1943 Mad. 246 , 206 I.C 356 , (1942) 2 M.L.J 668 and hold that the widow obtains the right to execute the decree on succession and therefore a succession certificate is necessary to the extent of her interest in the property. The appeal is dismissed with costs. Counsel's fee Rs. 46.

9. Appeal dismissed.