BHAGOBAI Vs. BHAIYALAL

JUDGEMENT

(1.) THIS appeal is by the first defendant Bhagabai, whose relationship with the respondents is shown in the following genealogy: NIHALSA (d) _________________________________________|______________________ | | | krishnasa (d) Hirasa (d) = Mst. Nathibai (plff. 1)Raghunath (d) = Mst. Gahenabai (d)| ___________|____________________ | | | | | Bhagwatibai| Pandharinath Kaluram Bahiyalal (deft. 1)| (d) (deft. 2) (plff. 2)|_____________________ | _________________|_________________ | | | Athuralal Babulal Chhujjalal

(2.) THE suit concerns the possession of an occupancy field No. 79 of mouza Boradia Mundi, tahsil Khandwa, district Nimar. It appears that in the family of Nihalsa there was a partition and the eldest son Krishnasa separated, while the other two sons Hirasa and Raghunath continued Joint. This, in effect, is the finding of the lower appellate Court, and it was not challenged before me. Afterwards there was a suit in 1942 between Hirasa on the one hand and Mst. Gahenabai, the widow of Raghunath, and her lessee Shamsher Khan on the other. During the course of that suit (Civil Suit No. 143a of 1942) the parties compromised the dispute, and the field in question was given to Gahenabai to be enjoyed by her as the heir of Raghunath. It was, however, provided in the compromise that after the death of Gahenabai the person who would be entitled to get the field would be determined according to Hindu law. After the death of Gahenabai the present suit was filed by Hirasa's branch against Mst. Bhagabai, joining also Kaluram one of the sons of Hirasa as a defendant because he did not wish to join as a plaintiff. Mst. Bhagabai alias Bhagwatibai claimed to inherit the field from Mst. Gahenabai which claim was negatived in the lower appellate Court.

(3.) TWO questions alone were raised in the present appeal, and they are based respectively upon the effect of the Hindu Women's Rights to Property Act and the compromise entered into in 1943. The contention of Bhagabai is that on a partition being claimed by Gahenabai and acceeded to by Hirasa the field in question became the property of Gahenabai or alternatively as the separate property of her deceased husband and that it would therefore descend to Bhagabai. In support of it a decision of the Madras High. Court reported in Parappa v. Nagamma, AIR 1954 Mad 576 (PB) (A) was relied upon. In that decision the Full Bench observed that if a widow asked for partition of her husband's interest from the other members of the family during her lifetime the succession would on her demise be traced to her husband on the basis that the property was separate property. It was contended that this leads to the success of Bhagabai, who would be the heir after the death of her mother Gahenabai. With all due respect to the Pull Bench, I find myself unable to accept the proposition laid down. Their Lordships in an earlier passage accepted the proposition that the widow is not raised to the status of a coparcener under the Act, though she continues to be a member of the joint family. The coparcenary, according to the learned Judges, continues as before, subject only to her statutory right. The right which is granted under the Act to the widow is to enjoy the interest of her husband during, her lifetime, with an added right to get the husband's interest severed for her separate enjoyment. Not being a member of the coparcenary, the widow is unable to disrupt the coparcenary; nor is she enabled under the Act to cause a severance of her deceased husband from the coparcenary of which he died a member. In my judgment -- and I say it with profound respect -- the statement of the law does not follow from the Act at all. All that the Act has allowed is a right of enjoyment, either as a member of the joint family without partition, or separately after a partition, to the widow during her lifetime. She is not enabled to bring the coparcenary to an end as a coparcener can by asking for a partition. She has the same right of claiming a partition as a male owner but not as a coparcener. That right is available only to a coparcener, which, as the Pull Bench admits, the widow is not.