S. S. Munna Lal Vs. S. S. Rajkumar
& Ors  INSC 70 (23 February 1962)
Hindu Law--Jains--Adoption--Widow, if can
adopt without express authority of husband--Preliminary decree for partition
declaring widow's share--Whether share "possessed" by widow--Death of
widow--If share reverts to estate--Hindu Succession Act, 1956 (30 of 1956), ss.
4,14,15 and 16.
G, a Digamber Jain of the, Porwal sect, died
in 1934 leaving behind his widow Smt. K, his son G who died in 1939 and three
grandsons M, P and R. In 1952 M's son S filed a suit for partition of the joint
family properties. Rajkumar, claiming to be a son of P adopted by his widow,
claimed a 1/4th share in the joint family property. The adoption was challenged
on the ground that no express authority had been given by P to his widow to
adopt. The trial court held that no express authority was required by a sinless
Jain widow to adopt a son and that the adoption was duly and properly made.
Accordingly, a preliminary decree declaring the shares of Smt. K, the branch of
M, the branch of R and of Rajkumar to be 1/4th each was passed. M and others
preferred an appeal to the HighCourt mainly against the findings on the
question of adoption. During the pendency of the appeal, the Hindu Succession
Act, 1956, came into force. Shortly thereafter Smt. K died. The High Court
upheld '.he decision of the trial court on the question of the adoption of
Rajkumar. With respect to the share of Smt. K the High Court held that her
interest declared by the preliminary decree was inchoate, that she never became
"possessed", 419 of any share within the meaning of s 14 of the Act
and that it remained joint family property which became divisible amongst the
parties proportionately to their shares. The appellants contended that the
adoption of Rajkumar was invalid as no custom applicable to the Porwal sect of
the jains had been established empowering a widow to adopt without the authority
of her husband and that the 1/4th share of Smt. K declared by the preliminary
decree had become her absolute property by virtue of s. 14 of the Act and upon
her death it descended to her grandsons M and R to the exclusion of other
Held, that the adoption of Rajkumar was
valid. A sonless Jain widow could adopt a son without the express authority of
her husband. Such a custom among the Jains not domiciled in the States of
Madras and the Punjab) has been recognised by judicial decisions spread over a
period longer than a century. Though none of these decisions related to the
Porwal sect of Jabalpur to which the parties belonged. They laid down a general
custom of the jains which were applicable to the parties. The decisions
proceeded not upon. any custom peculiar to any locality or to any sect of the
jains but. upon general custom which had by long acceptance become part of the
law applicable to them. Where a custom is repeatedly brought to the notice of
the Courts, the courts may held that custom introduced into the law without the
necessity of proof in each individual case.
Pemraj v. Mst. Chand Kanwar, (1947) L. R. 74
1. A. 224 and Mangibai Gulabchand v. Suganchand Bhikamchand, A.I.R. (1948) P.
C. 177, relied on.
Sheokuarbai v.Jeoraj, A.I.R. (1921) P.C. 77,
Saraswathi Ammal v. ,Jagadambal, (1953) S.C.R. 1939, Maharajah Govind nath Ray
v. Gulal Chand, (1833) 5 Sel. Rep. 276, Bhagwandas Tejmal v. Rajmal Alias
Hiralal Lachmindas, (1873) 10 Bom.
H.C. Rep. 241, Sheo Singh Rai v. Mst. Dakho
and Morari Lal (1878) L.R. 5 1. A. 87, Lakhmi Chand v. Gatto Bai, (1886) I.L.R.
8 All. 319, Manik Cha nd Golecha v. Jagit Settani, (1889) I.L.R. 17 Cal. 518,
Harar nabh Parshad alias Rajajee v. Mangil Das, (1899) I. L. R. 27 Cal. 379,
ManoharLal v. Banarsi Das (1907) I. L. R. 29 All. 495, Asharfi Kumar v. Rupchand,
(1908) I.L.R. 30 All. 197, Rup Chand v. Jambu, Prasad (1910) I.L.R. 32 All, 2
47, Jiwaraj v. Mst. Sheokuwarbai, A.I.R. (1920) Nag. 162, Banarsi Das v. Sumat
Prasad, (1936) I.L.R. 58 All. 1019 and Rama Rao v. Raja of Pittapur, (1918) L.
R. 43 1. A. 148, referred to.
Held, further that the 1/4th share of Smt. K
declared by the preliminury decree was "possessed" by her and on her
420 death it descended to her grandsons in accordance with provisions of ss. 15
and 16 of the Act. The word "possessed" in s. 14 was used in a broad
sense meaning the state of owing or having in one's power. The rule laid down
by the Privy Council that till actual division of the share declared in her
favour by a preliminary decree for partition of the,joint family prop" a
Hindu wife or mother was not recognised as owner of that share cannot apply
after the enactment of the Hindu Succession Act, 1956. Section 4 of the Act
made it clear that the Legislature intended to supersede the rules of Hindu law
on all rs in respect of which there was an express provision made in the Act.
Gumalapura Taggina Matada Kotturuswami v.
Setra Veerayya, (1959) 1 Supp. S.C.R. 968 and Pratapmull Agarwalla v. Dhanabati
Bibi, (1935) L.R. 63 I.A. 33, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 130 of 61.
Appeal by special leave from the judgment and
decree dated April 25, 1959 of the Madhya Pradesh High Court in First Appeal
No. 139 of 1955.
M.C. Setalvad, Attorney-General of India, S.
T. Desai, J.
B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for the appellants.
Sarjoo Prasad and G. C. Mathur, for
respondents No. 1 and 2.
Ganpat Rai, for respondent No. 3.
1962. February 23. The Judgment of the Court
was delivered by SHAH, J.-This appeal with special leave is against the decree
of the Madhya Pradesh High Court confirming the decree of the 1st Additional
District Judge, Jabalpur in Civil Suit No. 12-A of 1952.
The dispute between the parties arose in a
suit for partition of joint family property. The parties are Digambar Jains of
the Porwal Sect and are residents of Jabalpur which at the material time 421
was in Madhya Pradesh. The following pedigree explains the relationship between
the parties Garibdas=Mst. Khilonabai d. 24.7.34 (Def. 3) d.3.7.56 Gulzarilal d.
13.4.39 Munnalal Padamchand d.10.1.36 Ramchand (Def 1) (Def 2) Pyaribabu widow
Bhuribai Chandranibahu (Def. 4) (Def. 11) (Def. 8) Adupted son Rajkumar (Def. 12)
adopted 26.7.52 Saheblal Ballu Nand Hiralal Ishwari Kumar Prasad (Plaintiff)
(dead) (Def. 5) (Def. 6) (Def.7) Rajendra Kumar Abhay Kumar (Def 9) (Def. 10)
Saheblal son of Munnalal filed Suit No. 12A of 1952 in the Court of the 1st
Additional Subordinate Judge, Jabalpur on June 21, 1952, for a decree of
partition and separate possession of his 1/12th share in the joint family
He claimed that in the property his father's
branch was entitled to have a half share and the remaining half was owned by
422 Ram Chand and his branch. The Additional District Judge ordered that
Khilonabai grandmother of Munnalal and Ram chand-the wives of Munnalal and
Ramchand and their sons and Bhuribai (widow of Padamchand) and Rajkumar who
claimed to be a son of Padam Chand by adoption by Bhuribai on July 26, 1952, be
impleaded as defendants to the suit.
At the trial of the suit the right of
Saheblal to a share in the property was Dot questioned-. the dispute
principally turned upon the claim made by Bhuribai and her adopted son Rajkumar
to a share in the property. Padamchand had died before the enactment of the
Hindu Womens' Rigbt to Property Act, 1937, and his widow could not claim by
virtue of that Act a share in the property of the family. But Bhuribai and
Rajkumar pleaded that the parties were governed in the matter of adoption by
the customary law prevalent amongst the Jains of Central India, Madhya Pradesh,
North and Western India, and Rajkumar as a
son adopted by Bhuribai to Padam Chand became a coparcener in the joint family
and entitled to a share in the property and accretions thereto.
The validity of the adoption of Rajkumar was
challenged on many grounds, one only of which is material in this appeal.
It was submitted by the contesting defendants
and Bhuribai had no authority express or implied from her husband Padam Chand
to adopt a son and that the adoption of Rajkumar as a son without such
authority was invalid. '.the Additional District Judge rejected this plea and
ordered a preliminary decree for partition and declared that the share of the
plaintiff was 1/24th, of Munnalal, his wife and 3 sons collectively was 5/24th,
of Ramchand and his sons 1/4th, of Khilonabai 1/4th and the remaining 1/4th
share belonged to Rajkumar.
423 Against them decree, Munnalal, Ramchand,
Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who
were defendants 1 to 10 preferred an appeal to the High Court of Madhya
Pradesh. During the pendency of this appeal Khilonabai died on July 3, 1956 and
Ramchand and Munnalal applied to be impleaded as her legal representatives in
respect of the interest in the property awarded to Khilonabai by the
preliminary decree. By order dated December 12, 1957, the District Judge held
that the interest of Khilonabai devolved upon the applicants by virtue of ss. 15
and 16 of the Hindu Succession Act, 1956 which was brought into operation on
June 14, 1956, and that the sonsof Munnalal, Ramchand and Padam Chand could not
take a share in Khilonabai's interest.
Before the High Court two questions were
canvassed: (1) as to the factum and validity of the adoption of Rajkumar, and
(2) devolution of the share of Khilonabai declared by the preliminary decree on
her death. The High Court upheld the finding of the trial Court that Rajkumar
was in fact adopted by Bhuribai as a son to her husband on July 26, 1952, and
that amongst the Jains residing in the North West Province, Central India,
Northern India and in Bombay a widow could adopt a son to her deceased husband
without any express authority in that behalf In so holding the High Court
relied upon the judgments of the Privy Council in Pemraj v. Mst.
Chand Kanwar and Mangibai Gulabchand v.
Suganchand Baikamcand (1). But the High Court diclined to accept the view of
the trial Court that the right of Khilonabai declared by the preliminary decree
devolved upon Munnalal and Ramchand alone. In their view, Khilonabai's interest
under the decree being incohate was not "Possessed" by her within.
the meaning of s. 14 (1) (1947) L.R. 74 I.A. 254.
(2) A.I.R. (1948) P.C. 177.
424 of the Hindu Succession Act, 1956, and on
her death it merged into the estate, The High Court observed : "The result
is that the interest of Smt. Khilonabai remained incohate and fluctuating so
that after her death, the interest declared by the preliminary decree is
available for partition as joint family property and consequently ss.15 and 16
of the Hindu Succession Act are inapplicable to the interest. As the property
never became her absolute property by virtue of s.14 of the Act, the same
remained joint family property." Accordingly the decree of the trial Court
was modified and 1/3rd Share in the joint family property was awarded to
Rajkumar, 1/3rd to the branch of Munnalal and the remaining 1/3rd to the
branch. of Ramchand and adjustments were made on that footing in the shares of
the plaintiff and other members of the family.
In this appeal by defendant No. 1 (Munnalal)
2 (Ramchand) and 4 to 10, three contentions were raised : (1) in the absence of
express authority from her husband, Bhuribai could not adopt a son, (2) that
the 'interest of Khilonabai under the preliminary decree became her absolute
property by virtue of s.14 of the Hindu Succession Act, 1956 and on her death
it devolved upon her grandsons Munnalal and Ramchanddefendants 1 and 2-and (3)
the trial Court was in error indelegating to a Commissioner judicial function,
such as, ascertainment of property to be divided and effecting partition.
The third question is easily answered. The
trial court appointed a commissioner to propose a partition of joint family
property, and for that purpose the court authorised him to ascertain the
property, the debts which the family owed and also the individual liability of
the parties for the debts. For deciding those questions the Commissioner was
empowered to record statements of the parties, frame 425 issues and to record
evidence as might be necessary. The commissioner was also directed to submit
his proposals relating to the right of Bhuribai to be maintained out of the
joint family property. This order, it appears, was passed with the consent of
all the parties. It is true that the decree drawn up by the trial Court is not
strictly in accordance with the directions given in the judgment. But it is
manifest that the trial Judge only directed the Commissioner to submit his
proposals for partition of the property, and for that purpose authorised him to
ascertain the property which was available for partition and to ascertain the liability
of the joint family. By so authorising the Commissioner, the trial Court did
not abdicate its functions to the comissioner : the commissioner was merely
called upon to make proposals for partition, on which the parties would be
heard, and the Court would adjudicate upon such proposals in the light of the
decree, and the contentions of the parties. The proposals of the commissioner
cannot from their very nature be binding upon the parties nor the reasons in
support thereof. The order it may be, remembered was made with the consent of
the parties and no objection to the order was, it appears, pressed before the
High Court. We do not think that any case is made out for modifying that part
of the order.
The parties to this dispute are Digamber
Jains of the Porwal sect and are resident of Jabalpur. Jains have generally
been regarded as heterodox Hindus and in the absence of special custom they are
governed-by the rules applicable to Hindus. As observed by the Privy Council in
Sheokuarbai v. Jeoraff.(1) The Jains are of Hindu origin;
they are Hindu dissenters, and although as
was pointed out by Mr. Mayne in paragraph 46 of his Hindu Law and Usages"Generally
adhering to ordinary Hindu law, that is, the law of the three (1) A.I.R. (1921)
426 superior castes, they recognise, no
divine authority in the Vedas and do not practise the Shradhs, or ceremony for
the dead." "The due performance of the Shradhs, or religious
ceremonies for the dead, is at the base of the religious theory of adoption,
but the Jains; have so generally adopted the Hindu law that the Hindu rules of
adoption are applied to them in the absence of some contrary usage x x x."
But amongst the Jainsa custom enabling a widow to adopt a son to her husband
without express authority has been reco. gnised by judicial decisions spread
over a period longer than a century. In Pemraj v. Musammad Chand Kanwar(1), the
Judicial Committee of the Privy Council after a review of the case law observed
: " x x x x, in many other parts of India" (parts other than the
Provinces of Madras and the Punjab) "it has now been established by
decisions based on evidence from widely separated districts and from different
sects that the Jains observe the custom by which a widow may adopt to her
husband without his authority. This custom is based on religious tenants common
to all sects of Jains, and particularly their disbelief of the doctrine that
the spiritual welfare of the deceased husband may be affected by the adoption,
and though it cannot be shown that in any of the decided cases the parties were
of the Khandelwal sect, yet in none of the cases has a distinction been drawn
between one sect and another. It is now in their Lordship,%' opinion no longer
premature to hold that the custom prevails generally among all Jains except in
those areas in which there are special reasons, not operative in the rest of
India, which explains why the custom has not established itself. Mayne, in his
treaties on Hindu Law and Usage, at page 209, has lent the weight of his authority
to the proposition that among the Jains, except in the Madras Presidency a
sonless widow can adopt a son to her (1) (1947) L.K. 74 I.A. 254.
427 husband without his authority or the
consent of his sapindas". This view was reiterated by the Privy Council in
a case reported in Mangibai Gulabchand v.Suganchand Bhikamchand (1).
The Attorney General for the appellants,
however, contends that there is no evidence of a custom authorising the widow
of a Porwal Digamber Jain residing in Jabalpur to adopt a son to her husband
without express authority. Counsel submitted that the observations in the two
cases relating to the custom of adoption must be restricted to the sects to
which the parties to these cases belonged, and in so far as they purport to
extend the custom to all Jain residents in India outside Madras and the Punjab
they are mere dicta and not binding upon this Court. In Pemraj's case the
parties belonged to the Khandelwal sect domiciled and resident in Ajmer and in
Mangibai's case the parties were Marwari Jains of the Vis-Oswal sect who having
migrated from Jodhpur had settled down in the Thana District of the Bombay
Province, but the opinion of the Judicial Committee expressly proceeded upon a
well-recognised custom applicable to all Jains in the territory of India
(excepting Madras and the Punjab) and not upon proof of a restricted custom
governing the sects of Jains to which the parties belonged.
Undoubtedly, as observed by this Court in
Saraswathi' Ammal v. Jagadamhal (2) in dealing with the quantum of proof
required to prove a family or loca I custom, " it is incumbent on a party
getting up a custom to allege and prove the custom on which he relies and it is
not any theory of custom or deductions from other customs which can be made a
rule of decision but only any customs applicable to the parties concerned that
can be the rule of decision in particular case. x x x (1). A.I.R. (1948) P.C.
(2) (1953) S.C.R. 939.
428 Theory and custom are antitheses, custom
cannot be a matter mere of theory but must always be a matter of fact and one
custom cannot be deducted from another. A community living in one particular
district may have evolved a particular custom but from that it does not follow
that the community living in another district is necessarily following the same
custom." But the application of the custom to the parties to this appeal
does not appear to proceed upon analogies or deductions. It governs the
parties, because the custom has become a part of the law applicable to Jains in
India (except in Madras and the Punjab) by a long and uninterrupted course of
A review of the cases decided by different
Courts clearlyshows that the custom is generally applicable to Jains all over
India, except the Jain domiciled in Madras and the Punjab. The earliest case of
which a report is available is Maharaja Govindnath Bay v. Ray Chand (1) decided
by the Saddar Court Calcutta in 1933. 'in that case the validity of an adoption
by a Jain 'Widow of a son without express authority from her husband was
The Court after consulting the Pandits held
that by Jain law a sonless widow could adopt a son just as her husband for the
performance of religious rites and that the section of the vitis or priests to
the adoption is not essential. In Bhagwandas Tejmal V. Rajmal alias Hiralal
Lachmidas(2) the Bombay High Court-opined that the widow of a Jain was a
delegate either by express or implied authority to adopt a son, but she could
not delegate to another person that authority to adopt a son to her husband
after her death. In Sheo Singh Rai v. Mussumut Dakho and Moorari Lal, (3)
decided in 1878, the Privy 'Council affirmed the view of the North West
Provinces High Court that a sonless widow of a Jain had the right of adoption
without the permission of her husband or the consent (1) (1833) 5 Scl Rep 276.
(2) (1873) 10 Bom. H.C. Rep. 241.
(3) (1878) L.R. 5 I.& 87 429 of his
heirs. In that case before the Subordinate Judge and before the High Court
evidence was recorded of the custom applicable to Jains generally, in different
place such as Delhi, Jaipur, Mathura, Banaras and it was held that' the custom
was established by evidence. The parties to the suit were Agarwal Jains of
Meerut District, but decision of the Board proceeded upon a custom found on
evidence to be common to all Jains. In Lakhmi Chand v. Catto Bai. (1) decided
in 1886, again the power of a Jain widow to adopt a son to her deceased husband
was held proved. In Manik Chand Golecha v.
Jagat Settani, (2) decided in 1889, the High
Court of Bengal upheld a custom in respect of adoption by a widow of an.
Oswal Jain. The decision of the Court did not
proceed upon any custom peculiar to the Oswal sect. In Harnabh Pershad alias
Rajajee v. Mangil Das(3) decided in 1899, it was held upon the evidence
consisting partly of judicial decisions and partly of oral evidence that the
custom that a sonless Jain widow was competent to adopt a son to her husband
without his permission or the consent of his kinsmen, was sufficiently
established and that in this respect there was no material difference in the
custom of the Aggarwal, Choreewal (Porwal), Khandwal and Oswal sects of the
and that there was nothing to differentiate
the Jains at Arrab from the Jains elsewhere. The judgment of the case proceeded
upon an elaborate examination of numerous instances in which the custom was
held established. In Manohar Lal v. Banarsi Das(4) and in Asharfi Kumar v.
Rupchand(5) a similar custom was hold
established. In the latter case a large number of witnesses were examined at
different places and on a review of the decisions and the evidence the Court
held the custom proved. The judgment of the Allahabad (1) (1886) I.L.R. 8 All.
(2) (1889) I.L.R. 17 Cal. 5 1 8.
(3) (1899) I.L.R. 27 Cal. 379.
(4) (1907) 1.L.R. 29 All. 495.
(5) (1908) I.L.R. 30 All.197 430 High Court
in Asharfi's case was affirmed by the Privy Council in RupChand v. Jambu
Prasad. (1) It may be stated that the right of a Jain widow to adopt without
authority of her husband was not questioned before the Privy Council. In Jiwraj
v.. Mt. Sheokuwarbai the Court of the Judicial Commissioner' Nagpur held that
the permission of the husband was not necessary in the case of a Jain widow to
adopt a son. This case was also carried to the Privy Council and the judgment
was affirmed in Sheokuarbat v.
Jeoraj (3). In Banarsi Das v. Samat Prasad
(4) a similar custom was held established. The decisions in all these cases
proceeded not upon any custom peculiar to the locality, or to the sect of Jains
to which they belonged, but upon the view that being Jains, they were governed
by the custom which had by long acceptance become part of the law applicable to
them. It is well-settled that where a custom is repeatedly brought to the
notice of the Courts of a country, the courts may hold that custom introduced
into the law without the necessity of proof in each. individual case.
(Rama Rao v. Raja of Pittapur) (5).
The plea about the invalidity of the adoption
of Rajkumar by Bburibai must therefore fail.
Khilonabai died after the Hindu Succession
Act was brought into operation on June 14, 1956. This Act by s. 2(1)(b) applies
to Hindus and also to persons who are Jains by religion. The preliminary decree
was passed on July 29, 1955, and thereby Khilonabai was declared entitled to a
fourth share in the property of the family. Section 14 of the Hindu Succession
Act, 1956 provides:
"14(1) Any property possessed by a
femaleHindu, whether acquired before or after the commencement of this Act,
shall be (1) (1910) I.L.R. 32 All. 217.
(3) A.I.R. (1921) P.C. 77.
(2) A.I.R. (1920) Nag. 162.
(4) (1936) I.L.R. 58 All. 1019, (5) (1918)
L.R. 4 5 1.A. 148.
431 held by her as full owner thereof and not
as a limited owner.
EXPLANATION. In this sub-section
,property" includes both movable 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,
at 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 by such property held
by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1)
shall apply to any property acquired by way of gift orunder 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." Section 15 provides:
"115 (1) The property of a female Hindu
dying intestate shall devolve according to the rules set out in section 16,(a)
firstly, upon the sons and daughters (including the children of any predeceased
son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly' upon the mother and father;
432 (d) fourthly, upon the heirs of the
(e) lastly, upon, the heirs of the mother;
(2) Notwithstanding anything contained in
sub-section (1),(a) any property inherited by a female Hindufrom her father or
mother shall devolve, in the absence of any son or daughter of the deceased
(including the children of any predeceased son or daughter) not upon the other
heirs referred to in sub-section (1) in the order specified therein but upon
the heirs of the father: and (b) any property inherited by a female Hindu from
her husband or from her father-in-law shall devolve, in the absence of any son
or daughter of the deceased (including the children of any predeceased son or
daughter) not upon the other heirs referred to in subsection (1) in the order
specified therein, but upon the heirs of the husband." Section 16 which
prescribes the order of succession and manner of distribution among, the heirs
of a Hindu female provides by Rule ,,Among the heirs specified in sub-section
(1) of section 15, those in one entry shall be preferred to those in any
succeeding entry, and those included in the same entry shall take
simultaneously." 433 Counsel for Rajkumar concedes, and in our judgment he
is right in so conceding that if the share declared by the preliminary decree
in favour of Khilonabai is property possessed by her at the date of her death,
it should devolve upon her grandsons Munnalal and Ramchand, to the exclusion of
Rajkumar adopted son of Padam Chand.
This Court in Gumalapara Taggina Matada
Kotturuswami v. Setra Veeravva (1) held that "The word
"possessed" in s. 14 is used in a broad sense and in the context
means the state of owning or having in one's power". The preliminary
decree declared that Khilonabai was entitled to a share in the family 'estate and
the estate being with the family of which she was a member and in joint
enjoyment, would be possessed by her. But counsel for Rajkumar submitted that
under the preliminary decree passed in the suit for partition the interest of
Khilonabai in the estate was merely inchoate, for she had a mere right to be
maintained out of the estate and that her right continued to retain that
character till actual division was made and the share declared by the
preliminary decree was separated to her: on her death before actual division
the inchoate interest again reverted to the estate out of which it was carved.
Counsel relied upon the judgment of the judicial committee in Pratpamull
Agarwalla v. Dhanabati Bibi (2) in support of his plea that under the
Mitakshara law, when the family estate is divided a wife or mother is entitled
to a share.. but is not recognised as the owner of such share until the
division of the, property is actually made,as she has no preexisting right in
the estate except a right of maintenance. Counsel submitted that this rule of
Hindu law was not affected by anything contained in s. 14 of the Hindu Succession
By s. 14 (1) the Legislature sought to
convert the interest of a Hindu female which under the (1)  1 Supp.
(2) (1935) L.R. 63 I.A 33.
434 Sastric Hindu law would have been
regarded as a limited interest into an absolute interest and by the explanation
thereto gave to the expression property" the widest connotation. The expression
includes property acquired by a Hindu female 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 at or after her marriage, or by
her own skill or exertion, or by purchase or by prescription, or in any other
manner whatsoever. By s. 14(1) manifestly it is intended to convert the
interest which a Hindu female has in property however restricted the nature of
that interest under the Sastric Hindu law may be into absolute estate. Pratap
mull's case undoubtedly laid down that till actual division of the share
declared in her favour by a preliminary decree for partition of the joint
family estate a Hindu wife or mother, was not recognized as owner, but that
rule cannot in our judgment apply after the enactment of the Hindu Succession Act.
The Act is a codifying enactment, and has made far reaching changes in the
structure of the Hindu law of inheritance, and succession. The Act confers upon
Hindu females full rights of inheritance, and sweeps away the traditional
limitations on her powers of dispositions which were regarded under the Hindu
law as inherent in her estate.
She it; under the Act regarded as a fresh
stock of descent in respect of property possessed by her at the time of her
death. It is true that under the Sastric Hindu, law, the share given to a Hindu
widow on partition between her sons or her grandsons was in lieu of her right
She was not entitled to claim partition. But
the Legislature by enacting the Hindu Women's' Right to Property Act, 1937 made
a significant departure in that branch of the law: the Act gave a Hindu widow
the same interest in the property 435 which her husband had at the time of his
death, and if the estate was partitioned she became owner in severally of her
share, subject of course, to the restrictions on disposition and the peculiar
rule of extinction of the estate on death actual or civil. It cannot be amused
having regard to this development that in enacting 8. 14 of the Hindu
Succession Act, the Legislature merely intended to declare the rule enunciated
by the Privy Council in Pratapmulls case.
Section 4 of the Act gives an overriding
effect to the provisions of the Act. It enacts" Save as otherwise
expressly provided in this Act,(a) any text rule or interpretation of Hindi law
or any custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have ;effect with respect to 'any
matter for which provision is made in this Act :
(b) x x x x X" Manifestly, the
legislature intended to supersede the rules of Hindu law on all matters in
respect of which there was an express provision made in the Act.
Normally a rights declared in an estate by a
preliminary decree would be regarded as property, and there is nothing in the
context in which s. 14 occurs or in the phraseology used by the Legislature to
warrant the view that such a right declared in relation to the estate of a
joint family in favour of a Hindu widow is not property within the meaning of
s. 14. In the light of the scheme of the Act and its avowed purpose it. would
be difficult, without doing violence to the language used in the enactment, to
assume that a right declared in property in favour of a person under a decree
for partition is not a right to property. , If under a preliminary decree the
right in favour of a Hindu male be regarded as property the right declared in
favour of a Hindu female must also be regarded 436 as property. The High Court
was therefore, in our judgment, in error in holding that the right declared in
favour of Khilonabai was not possessed by her, nor are we able to agree with
the submission of the learned counsel for Raj Kumar that it was not property
within the meaning of s. 14 of the Act.
On that view of the case, by virtue of so. 15
and 16 of the Act, the interest declared in favour of Khilonabai devolved upon
her sons Munnalal and Ramohand to the exclusion of her grandson Rajkumar. The
decree passed by the High Court is therefore modified in this respect and the
decree passed by the trial Court restored. Having regard to the partial success
of the parties, there will be no order as to costs in this appeal and in the