JANA Vs. PARVATI

JUDGEMENT

(1.) THIS second appeal raises a vexed question of considerable importance and the question relates to the construction of the principal provisions of the Hindu Women's Rights to Property Act, 1937, which introduced important and for-reaching changes in the law of succession and did so in statutory language which has brought many a lawyer and Judge to a state of perplexity. The enactment was obviously intended to give better rights to women by recognising their claim to fair and equable treatment in certain matters of succession but unfortunately the rules of devolution laid down in it are so penned that it his given rise to anomalies and a number of conundrums and an attempt to resolve any one difficulty his often caused misconceptions and equally great if not greater difficulties in other cases.

(2.) JANA, the first defendant who is the first appellant before me, is the widow of one Gadi. Her son, Santosh, the plaintiff-respondent, and Gadi were prior to 23rd May, 1946 members of a joint Hindu family and at a partition effected between them on that date 3. 80 acres of land in field No. 639 was allotted to the plaintiff, and the remaining 7. 30 acres of land fell to the snare of Gadi. Thereafter, it appears the plaintiff sold 1 acre of land from his share to his father with the result that when Gadi died on 8tn October, 1948 he was holding 8. 30 acres of the land in that field. On 20th April, 1949, the first defendant executed a lease of this land to the second defendant who is the second appellant before me. It is not necessary for the purpose of this appeal to examine all the disputes between the mother and the son, and it will suffice to state that Santosh brought this suit substantially in assertion of his right to the entire field, and the relief sought by him was that the defendants should be restrained from interfering with his right to enjoy the whole field. The trial Court held that by operation of the Hindu Women's Bights to Property Act, 1937, the plaintiff and the first defendant inherited 8. 30 acres of land left by Gadi in equal shades as co-owners and on that ground dismissed the suit. The lower appellate Court has taken the view that on Gadi's death, this 8. 30 acres of land passed to the plaintiff and passed a decree restraining the defendants from disturbing the plaintiff's possession of the entire field, and the defendants have now come to this Court in this second appeal.

(3.) THE learned Judge in the lower appellate Court followed a decision of the Nagpur High Court in Bhaoorao v. Chandrabhagubai, ILR 1948 Nag 405: (AIR 1949 Nag 108) (A), where following a decision of the Federal Court in Umayal Achi v. Lakshmi Achi, (1945) FCR 1: (AIR 1945 FC 25) (B), it was held that under Hindu Law the share received by the father on a partition between him and his son is not his separate property and on his death it passes to his son in preference to his widow. The Hindu Women's Rights to Property Act, it was held in the Nagpur case, docs not in this respect make any difference and the widow is entitled to a share under the Act in the separate property only in the narrow sense, viz. , of property acquired by the deceased by his own exertions without the assistance of family funds.