SUKH RAM Vs. GAURI SHANKAR

JUDGEMENT

(1.) 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.

(2.) 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 Rights 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 Rights to Property Act, 1937. The Parliament enacted the Hindu Succession Act 30 of 1956, which by S. 14 (1) provided that -

(3.) 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 avyavaharika, 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 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.