KRISHNA DASSI SAHA Vs. AKHIL CH SAHA

JUDGEMENT

(1.) This is an application by a Hindu mother for an order that the properties to be allotted to her under the preliminary decree in this suit be allotted to her as a full owner, and the preliminary decree be amended accordingly. The preliminary decree directed that the properties to be allotted to her "be held and enjoyed by her as a Hindu mother during the time or her natural life in the manner prescribed by Hindu Law". The, preliminary decree was passed on 31-1-1951. Since then, the Hindu Succession Act, 1956 came into force- The plaintiff contends that under Section 14 of the Act she is now entitled to hold and enjoy the properties to be allotted to her on partition as a full owner and not as a limited owner. It is contended by the contesting defendant that she is not entitled to the order under the said section. The decision will depend on the construction of Section 14 of the Act, which reads as follows :

(2.) Mr. B.C. Dutt, learned counsel for the opposing defendant, bases his opposition on two grounds. The first ground is that in order that Section 14(1) may apply, it must be proved that at the material date the Hindu female was in possession of the property. In the instant case, the plaintiff was not in possession of the property at the date of the Act coming into force --the property being in the possession of a Receiver appointed by this Court. Hence, the plaintiff cannot get the property to be allotted to her on partition as full owner. The second ground is that, in any event, the preliminary decree, having already been passed in this suit, which prescribes a restricted estate to the plaintiff in the properties to be allotted to her, Sub-section (2) of Section 14 of the Act prevents the application of Sub-section (1).

(3.) To take the first point first, Section 14 is the section in the Act which purports to alter the Hindu Law as to Hindu Women's estate. Formerly she had limited ownership in properties. She is now under Section 14 of the Act to hold a property as full owner and not as a limited owner. This is a revolutionary change effected by Section 14 of the Act. Certain exceptions to the general rule as embodied in Section 14(1) are enumerated in Sub-section (2). It is contended, however, that apart from the exceptions set out in Sub-section (2), Sub-section (1) itself is not applicable unless the Hindu female is in "possession" of the property at the date of the commencement of the Act. Once she is in possession of the property, she will have an absolute title. If, however, she is not in possession of the property, she does not acquire absolute title under Section 14(1). It is contended that possession of the property is the test of the applicability of Section 14(1).