HIRDAY NARAIN TANDON Vs. KASHI PRASAD TANDON

JUDGEMENT

(1.) THIS is a defendants' second appeal from a preliminary decree in a suit for partition declaring the plaintiff's share in the properties in suit to be one-third, and also that the parties are entitled to accounting between themselves from 12th August, 1954, and both the plaintiff and the contesting defendant No. 1 are the accounting parties, that is to say, liable to render account to each other.

(2.) THE plaintiff and the contesting defendant No. 1 are brothers and the defendant No. 2, Smt. Hirobibi, was their mother, who has died during the pendency of the Second Appeal in this Court, and is now represented by the son and daughter of the plaintiff-respondent with the note that the defendant- appellant Hirday Narain Tandon, objected that he was a legal representative of the deceased along with the plaintiff-respondent, and that the plaintiff-respondent's son and daughter were not her legal representatives. THE reason for this kind of a qualified substitution of the heirs of the deceased respondent No. 2 lay in the fact that the son and daughter of the plaintiff-respondent claimed to be her heirs under a will. THE validity of that will was challenged on the ground that Smt. Hiro Bibi had no share in the property in suit, and the question whether she had any share in the property in suit, was the main question to be determined in the appeal. Since the appellant contended that she had no share, and the plaintiff-respondent contended that she had a share, and that she had bequeathed it to his son and daughter, it was considered to be proper that the son and daughter of the plaintiff-respondent, to whom she had purported to bequeath her share, were best entitled to represent her estate in this Second Appeal.

(3.) THE father of the two contesting parties, namely, Lala Ram Prasad Tandon, from whom the property sought to be partitioned had descended, died on 26th Dec. , 1941. THE parties are presumably governed by the Mitakshara School of Hindu Law. In the result, under sub-sec. (2) of S. 3 of the Hindu Women's Rights to Property Act, 1937, the mother of the contesting parties acquired, on the death of Lala Ram Prasad Tandon, the same interest as he himself had in the joint family property, which is the subject- matter of the present suit, and under sub-section (3) thereof, the interest, which so devolved on her, was the limited interest known as a Hindu Women's estate, subject, however, to the proviso that she had the same right of claiming partition as her husband or her sons. She did not claim partition, and, if she had not surrendered her interest, when the Hindu Succession Act, 1956, came into force on 18th June, 1956, the property possessed by her, namely, the interest so acquired by her on the death of her husband in 1941, came to be held by her as full owner and not as limited owner; and as the full owner of her undivided interest in the joint family property, apart from claiming a one-third share in her own right in the suit for partition, she could also bequeath it by will under Section 30 of the Hindu Succession Act.