Sukhram & ANR Vs. Gauri Shankar
& ANR [1967] INSC 204 (11 September 1967)
11/09/1967 SHAH, J.C.
SHAH, J.C.
SIKRI, S.M.
SHELAT, J.M.
CITATION: 1968 AIR 365 1968 SCR (1) 476
CITATOR INFO :
E 1970 SC1730 (6) R 1970 SC1963 (7) RF 1977
SC1944 (35) D 1991 SC1581 (8)
ACT:
Hindu Succession Act 30 of 1956, s.
14(1)-Coparcenary governed by Benares School of Mitakshara rule that male
coparcener cannot alienate his share of property without assent of other
coparceners-Whether applicable to widow's interest under s. 14(1).
HEADNOTE:
The first appellant, his brother H and his
son the second appellant, constituted a Hindu Joint family and were governed by
the Mitakshara law of the Benares School. He died in 1952 leaving him surviving
his widow. On December 15, 1956, the widow sold a half share in a house and a
shop belonging to the joint family to the first respondent. The appellants
filed a suit for a decree declaring that the sale by the widow was without
consideration and for an order cancelling the sale deed. The suit was dismissed
by the Trial Court and, in appeal, by the High Court.
In appeal to this Court it was contended on
behalf of the appellants that under the Benares School of the Mitakshara, a
male coparcener is not entitled to alienate even for value, his undivided
interest in coparcenary property without the consent of the other coparceners
except in certain specified cases, and by s. 14(1) of the Hindu Succession Act
30 of 1956 it could not have been intended to confer a larger right on the widow
of a coparcener.
HELD: On the death of her husband, the widow
became entitled to the same interest which H had in the joint family property
under s.3(2) of the Hindu Women's Right to Property Act, 18 of 1937, in the
joint family property of that interest, by virtue of s.14(1) of the Hindu
Succession Act 1956, she became full owner on June 17, 1956 and being full owner
she was competent to sell it for her own purpose without the consent of the
male coparceners of her husband.
[477D-G] A male member of a Hindu family
governed by the. Benares School of Hindu Law is undoubtedly subject to
restrictions qua alienation of his interest in the joint family property.
but a widow acquiring an interest in that
property by virtue of the Hindu Succession Act is not subject to any such
restrictions. That is however not a ground for importing limitations which the
Parliament has not chosen to impose.
[478F] Madho Parshad v. Mehrban Singh, L.R.
17 I.A. 194; Balgobind Das v. Narain Lal and Ors. L.R. 20 I.A. 116 and
Chandradeo Singh & Ors. v. Mata Prasad & Anr. T.L.R. 31 All. 176
(F.B.); referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 21 of 1965.
Appeal by special leave from the judgment and
decree dated March 15, 1961 of the Allahabad High Court in Second Appeal No.
2434 of 1960.
N.C. Chatterjee, E. C. Agarwala, Kartar Singh
and P.C.
Agarwala, for the appellants.
J. P. Goyal and B. P. Jha, for the
respondents.
477 The Judgment of the Court was delivered
by Shah, J. Hukam Singh and Sukhram-the first appellant in this appeal-were two
brothers. Chidda-the second appellant, is the son of Sukhram, Hukam Singh,
Sukhram and Chidda constituted a Hindu joint family and were governed by the
Mitakshara Law of the Benares School. Hukam Singh died in 1952 leaving him
surviving his wife Kishan Devi. On December 15, 1956, Kishan Devi sold a half
share in a house and a shop belonging to the joint family, to Gauri Shankar.
Sukhram and his son Chidda then commenced an
action in the Court of the Munsif of Ghaziabad for a decree declaring that the
sale by Kishan Devi to Gauri Shankar was without consideration, and for an
order cancelling the sale deed.
The suit was dismissed by the Court of First
Instance, the District Court, Meerut, and the High Court of Allahabad.
In this appeal the only question which falls
to be determined is whether the sale deed executed by Kishan Devi was binding
upon the coparceners of her husband. On the death of Hukam Singh in 1952, it is
common ground Kishan Devi acquired by virtue of s. 3(2) of the Hindu Women's
Right to Property Act 18 of 1937, the same interest in the property of the
joint family which Hukam Singh had. That interest was limited interest known as
the 'Hindu, Woman's estate': s. 3(3) of the Hindu Women's Right to Property
Act, 1937. The Parliament enacted The Hindu Succession Act 30 of 1956, which by
s. 14(1) provided that"Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner." The plea raised in the
District Court that Kishan Devi was not "possessed" of the property
which she sold to Gauri Shankar was rejected, and has not been set up before
us.
Clearly therefore, on the express words of s.
14(1) of the Hindu Succession Act, Kishan Devi acquired on June 17, 1956,
rights of full ownership in the interest which Hukam Singh had in the property
of the family during his life time, and she was competent without the consent
of the male members of the family to sell the property for her own purposes.
But Mr. Chatterjee for the appellants submits
that under the Benares School of the Mitakshara a male coparcener is not
entitled to alienate even for value his undivided interest in coparcenary
property without the consent of the other coparceners, unless the alienation be
for legal necessity, or if the coparcener is the father, for payment by him of
his antecedent debts which are not illegal or avvavaharika, and it could not
have been intended by Parliament to confer upon a widow in a Hindu family a
larger right than the right which the surviving coparceners could exercise at
the date of the sale by the widow. Counsel says that the Parliament by Act 30
478 of 1956 merely intended to confer upon a Hindu widow rights of full
ownership in the interest in property in which she had prior to that Act, only
a limited interest, but did not intend to destroy the essential character of
joint family property so as to invest the widow with power to alienate that
interest without the assent of the coparceners of her husband.
It is true that under the Benares school of
the Mitakshara a caparcener may not, without the consent of the other coparceners,
sell his undivided share in the family estate for his own benefit: Madho
Parshad v. Mehrban Singh(1);
Balgobind Das v. Narain Lal and Ors. (2) and
Chandradeo.
Singh & Ors. v. Mata Prasad & Anr.
(3) But the words of s. 14 of the Hindu Succession Act are express and
explicit;
thereby a female Hindu possessed of property
whether acquired before or after the commencement of the Act holds it as full
owner and not as a limited owner. The interest to which Kishan Devi became
entitled on the death of her husband under S. 3(2) of the Hindu Women's Right
to Property Act, 1937, in the property of the joint family is indisputably her
"property" within the meaning of S. 14 of Act 30 of 1956, and when
she became "full owner" of that property she acquired a right
unlimited in point of user and duration and uninhibited in point of
disposition.
We are unable to agree with Mr. Chatterjee
that restrictions on the right of the male members of a Hindu joint family form
the bed-rock on which the law relating to joint family property under the Hindu
Law is founded. Under the Law of the Mitakshara as administered in the
territory governed by the Maharashtra and the Madras Schools and even in the
State of Madhya Pradesh, a Hindu coparcener is competent to alienate for value
his undivided interest in the entire joint family property or any specific
property without the assent of his coparceners. A male member of a Hindu family
governed by the Benaras School of Hindu Law is undoubtedly subject to
restrictions qua alienation of his interest in the joint family property but a
widow acquiring an interest in that property by virtue of the Hindu Succession
Act is not subject to any such restrictions. That is however not a ground for
importing limitations which the Parliament has not chosen to impose.
On the death of her husband, Kishan Devi
became entitled to the same interest which Hukam Singh had in the joint family
property of that interest, she became full owner on June 17, 1956, and being
full owner she was competent to sell that interest for her own purposes,
without the consent of the male coparceners of her husband.
The appeal therefore fails and is dismissed
with costs.
R.K.P.S.
Appeal dismissed.
(1) L.R. 17 I.A. 194.
(2) L.R. 20 I.A. 116.
(3) I.L.R. 31 All. 176 (F.B.).
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