RANU THAKU KOKATE Vs. SANTU GOGA BHANGARE

JUDGEMENT

(1.) THIS second appeal has been referred for decision to the Full Bench as it involves an important question as to the scope and effect of sections 2 and 3 of the Hindu Women's Rights to Property Act XVIII of 1937 as amended by Act XI of 1938. The facts upon which the questions arise fall within a narrow compass. One Yesu had two sons; Pandu and Goga. Pandu had a wife Dhondi and two daughters Jani and Patri. Pandu died in 1939 leaving behind his widow Dhondi, two daughters Jani and Patri and a widow of his predeceased son Sakharam. The name of the widow of the predeceased son does not appear on the record before us. Goga had two sons Santu and Bahiru. On 24th March 1939 a partition took place between Goga and Dhondi, the widow of his brother Pandu, and by that partition Dhondi was given the agricultural lands which were the subject-matter of the suit. They are lands admeasuring in all 21 acres and 11 1/2 gunthas. It appears that on the same day that the partition took place, Dhondi sold away the entire property to the 1st defendant Ranu Thaku Kokate for a sum of Rs. 300. After the sale Dhondi died in 1945 and after her Goga died in 1949.

(2.) NOW the suit was a suit for possession of joint family property. In the suit the plaintiff was Santu, the son of Goga. He joined his brother Bahiru as the third defendant because the latter declined to join with him as the plaintiff. The first defendant was Ranu Thaku Kokate, the purchaser of the lands, the second defendant was one Valu Gangaram Kanade who was joined because he was on the date of the suit recorded as the holder of some part of the lands sold by the deceased Dhondi; the third defendant was Bahiru Goga Bhangare (defendant No. 3) who, as we have said, was joined as a pro-forma defendant. The plaintiff claimed that Dhondi being a limited owner had no right to sell the fields to the defendant No. 1, because they were joint family properties. The plaintiff claimed the properties as the reversionary heir to Pandu's estate in the hands of Dhondi along with his brother the third defendant, after the death of Dhondi. They claimed that though Dhondi had claimed partition of the property from Goga in 1939 she still held the property as a limited owner and could alienate it only for legal necessity. The sale to the first defendant was without legal necessity and the plaintiff as reversionary heir had the right to suit, the first defendant, who was the purchaser, denied that Pandu and Goga were joint when Pandu died. According to him Pandu was separate from his brother Goga and Dhondi inherited his separate property and had a right to sell away the fields to him. In any case he pleaded that even assuming that Dhondi held the property as a limited owner, Dhondi sold them away for legal necessity. Her husband Pandu had some debts to pay and therefore, his widow Dhondi sold the property to discharge the debts. Moreover she had to maintain herself and her daughters and therefore there was legal necessity for the sale of suit lands. The second defendant adopted the defence of the first defendant. The third defendant, the brother of the plaintiff, filed no written statement. The trial Judge dismissed the plaintiff's suit. He held that the suit lands were sold for legal necessity and that the sale was binding on the plaintiff and the defendant No. 3, but in addition the trial Judge held that the plaintiff was not the reversionary heir of the deceased Pandu. The plaintiff appealed and the Extra Assistant Judge at Nasik reversed the decision of the trial Court. He has held that the plaintiff and the defendant No. 3 were the reversionary heirs of the deceased Pandu. On the question of legal necessity for the sale of the suit properties he held that the legal necessity had not been established. In the result be held that the plaintiff and the defendant No. 3 were entitled to recover the property from the first defendant and granted a decree in their favour. The first defendant is the appellant before us. Now this being second appeal we are bound by the findings of facts reached by the appellate Court and Mr. Sukthankar on behalf of the appellant has rightly not pressed any ground against the findings of the appellate Judge that there was no legal necessity for the transaction of sale between Dhondi and the first defendant Ranu. Therefore, so far as the points raised in the appeal before us are concerned, it must be accepted that Dhondi sold the suit lands without legal necessity. The principal point which has been raised in the present case is that Dhondi when she took the property on the partition with Goga, exercised her statutory right of partition under the provisions of Section 3 of the Hindu Women's Rights to Property Act. If so, her rights in the property after her life time cannot be taken by the plaintiff and the third defendant by survivorship or by inheritance, but the property will go by inheritance to the heirs of her deceased husband Pandu who are the two daughters Jani and Patri. Upon that contention it will be seen that a pure question of law arises for determination in the present appeal. Since on this question there is conflict of authorities the question has been referred to a Full Bench. Prior to the coming into force of the Hindu Women's Rights to Property Act a Hindu Widow inheriting property was subject to certain restrictions on alienation and the property which she held would devolve upon the next heir of the last full owner upon her death. Though the whole estate vested in her and she represented it she had only a power of alienation subject to limitation, the limitations being that there should be legal necessity for the alienation or that the alienation should have been reasonably made as to the necessity or that the next reversioner to the alienation should have consented to it or under certain circumstances that she should have surrendered her estate. Apart from these conditions she had no power of alienation and on her death the property passed to the heirs of her late husband. Upon this customary law were engrafted the provisions of the Hindu Women's Rights to Property Act XVIII of 1937 which came into force on 14th April 1937, and inevitably the attempt to impose by statute a new but qualified right in favour of women upon the orthodox Hindu law based on ancient custom has affected in diverse unforeseen ways several branches of that law and given rise not merely to complexities but to diverse views as to what the legislature truly meant when it purported to give enlarged rights to women. In Dagadu v. Namdeo, 56 Bom LR 513= (AIR 1955 Bom 152) Chief Justice Chagla observed that the language of the Act was not happy and its provisions obscure. How obscure are its provisions and how difficult of interpretation its language will be seen from what follows :-The preamble of the Act indicates that it was enacted to give better rights to women in respect of property and it is one of the first pieces of legislation which the State undertook as a measure of Hindu Law Reform. It was followed in later years by other similar legislation. Sections 2 and 3 of the Act run as follows (we quote only that portion of Section 3 which applies to Hindus governed by the Mitakshara which is the case here):-"2. Notwithstanding any rule of Hindu law or custom to the contrary; the provisions of Section 3 shall apply where a Hindu dies intestate 3. . . . .

(3.) 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.