SATRUGHAN ISSER Vs. SABUJPARI

JUDGEMENT

(1.) Musamut Chando Kuer, widow of Babuji, instituted a suit on April 23, 1949 in the Court of the Subordinate Judge, Darbhanga, against the collaterals of her husband for a decree for partition and separate possession of a half share in the properties described in Schs. A to E and a fourth share in Sch. F annexed to the plaint. It was the case of Chando Kuer that her husband Babuji separated in 1934 from the coparcenary of which he was a member and on his death on October 28, 1937 his share in the family property devolved upon her, but the defendants failed and neglected to divide the estate and deliver to her the share inherited by her. The suit was resisted by the collaterals of Babuji. Chando Kuer died on March 9,1951, and her daughters Subujpari and Sujan Devi (hereinafter collectively called 'the appellants') were brought on the record of the suit as her heirs and legal representatives.

(2.) Being of the opinion that the plea of separation of Babuji from the coparcenary in 1934 was not established, and that the interest of Babuji in the coparcenary property devolved upon the surviving coparceners, the Trial Court dismissed the suit. In appeal, the High Court of Judicature at Patna, granted a decree for possession of a share in the property as at the date of the Suit. They held that on the death of Babuji on October 28, 1937, Chando Kuer by virtue of the Hindu Women's Rights to Property Act, 18 of 19'37, acquired in the property of the coparcenary the same interest which Babuji had, and by the institution of the suit for partition that interest became defined, and on her death it devolved upon the appellants as heirs to the estate of Babuji. With certificate granted by the High Court, Satrughan the son of Ghiran has appealed to this Court.

(3.) Under the Mitakshara school of Hindu law, on the death of a coparcener his individual interests in coparcenary property devolves by survivorship upon the remaining coparceners, and his widow if any is entitled to maintenance only out of the property. But the Parliament enacted Act 18 of 1937 which sought to invest the widow in a family governed by the Mitakshara law with the same interest which her husband had in the family estate at the time of his death and also with the right to obtain by partition separate possession of her interest. Section 3 of Act 18 of 1937 as amended by Act 11 of 1938 (insofar as it is material in this appeal) is :