AMAR NATH MEHROTRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) A notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act) was served on petitioner No. 1 who filed an objection. One of the pleas raised in the objection was that his mother was also entitled to J/3rd share in the property as she inherited that right under the Hindu Women's Rights to Property Act (XVIII of 1937). A similar objection was also filed by peti tioner No. 2 claiming her self to be the tenure-holder of the property to an extent of 1/3rd share on the ground that the property being ancestral sir khudkasht, she has also inherited share on the death of her husband prior to the date of vesting. Her objection was also rejected. The petitioners there upon filed appeals. The appeals ware partly allowed. Review was sought thereafter on the basis of partition decree but the same was also rejected. Aggrieved, the petitioners have come to this Court under Article 226 of the Constitution. The only contention raised by the learned counsel for the petitioners is that the mother of petitioner No. 1, was tenure-holder of the land to an extent of 1/3rd share -and as such her share was not liable to be included in the hold ing of petitioner No. 1, hence the judgments of the authorities below suffer from error apparent on the face of the record. In the present case, the authorities below did not accept the contention of the petitioners and held that the mother had no right, on the ground that a widow under the Hindu Women's Rights to Property Act can claim interest in the property only if she claims partition. As in the present case partition was not claimed by petitioner No. 2 either before or after the date of vesting and the name of petitioner No. 1 continues to be recorded hence she was not entitled to any share. The judgment of the appellate authority is not based on correct pro position of law. Sub-sections (2) and (3) of Section 3 of the Hindu Women's Rights to Property Act are relevent for the purpose of the present case which reads as follows: "(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Women's estate, provided however that she shall have the same right of claiming partition as a male owner." On a plain reading of the aforesaid provisions it is clear that a Hindu widow shall have the same interest in the property as her husband had, hence she could claim partition of that interest in the same right as that of her husband. The learned single Judge of this Court in the case of Sukh Ram and another v. Gori Shanker and another, A. I. R. 1962 All. 18 held that a Hindu widow of a joint Hindu family has the same interest as her husband had and alienation made by her cannot be challenged by other members of the joint family. However, a contrary view was taken by another Hon'ble judge in Smt. Anandi Devi v. L. Shyam Kishore and another, 1974, A. L. J. 151 wherein it has been held that a widow is not deemed to be a co-parcener of the family and is entitled to a share equal to the share of her husband. It has further been held that the necessary ingredient to invoke the right to property is that she can seek partition of her share. The earlier view has found support in a number of cases of other High Courts. Now the controversy has finally been set at rest by the Supreme Court in Controller of Estate Duty, Madras v. Alladi Kitppu-swamy A. I. R. 1977 S. C. 2069. The Supreme Court has held: "While we agree that the widow after the introduction in the coparcen ary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the statue of a Hindu widow under the Shastric Law chose to improve her status by conferring a new right on her under the Act of 1973, and with this avowed object clothed her with all the rights and con comitants of a coparcener's interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has in the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by Section 3(3) of the Act of 1973, namely, that her interest would be the limited interest of a Hindu widow." It is evident that petitioner No. 2. Smt. Tikkho Devi inherited interest in the coparcenary property and the limitation placed on her was merely that she had limited interest. As this interest was partible, she was entitled to inherit her share in that property. The finding of the appellate authority that as petitioner No. 2 did not claim partition hence she could not claim any share in that property, is not sustainable in law. As the question has not been determined property in accordance with the principles is laid down by the Supreme Court, it is necessary that the matter be sent back to the appellate authority for deciding the case afresh in accordance with law. The case is liable to be sent back to the appellate authority on another ground also. The appellate authority held that the property was ancestral sir Khudkasht and the son of petitioner No. 1 was also entitled to a share. While determining share, the appellate authority granted 1/4th share to the son. If father and son only are entitled to share the property, then it is not under standable as to how he gets only 1/4th share when both of them inherit equally. The question whether Smt. Tikkho Devi petitioner No. 2 is also entitled to any share or not, has to be determined and in case it is established that she has also some share, the position of the sharers is liable to be changed. In the result, this writ petition is partly allowed and the judgment of the appellate authority relating to the claim of petitioner No. 2 as also with respect to the share of petitioner no. 1 is hereby quashed. The case is sent back to the appellate authority for deciding share in the light of the obeerva tions made above. The other findings of the appellate authority are, however, confirmed. The parties shall bear their own costs. The stay order shall stand discharged.