RADHI BEWA Vs. BHAGWAN SAHU

JUDGEMENT

(1.) This reference to the special Bench was necessitated in consequence of a difference of opinion between my lord the Chief Justice and my learned brother Justice Das who first heard the appeal as a Division Bench.

(2.) The essential facts have been fully set out in the judgment of my learned brother Justice Das and it is unnecessary to repeat them at length. Appellant Radhi Bewa (who was defendant No. 2 in the original suit) is the widow of one Bairagi who died sometime in 1932 or 1934. Respondent Bhagawan (plaintiff no. 1) is the own brother of Batragi and respondents Brundaban and Hrudanand (plaintiffs 2 and 3) are the sons of another brother of Bhagawan and Bairagi named Natha who is dead. There was another brother of Bhagawan named Bharat who died leaving a widow named Keluni (defendant no. 1) and a daughter (defendant no 3.) They were also parties to the litigation in the early stages and it appears that they eventually compromised with the plaintiffs. The whole case proceeded on the assumption that the Mitakshara coparcenary which originally consisted of Bhagawan and his three brothers Natha, Bharat and Bairagi remained in tact even after the death of Natha, Bharat and Bairagi and that at present the surviving coparceners are Bhagawan on the one hand and Natha's two sons Brundaban and Hrudanand on the other. They, therefore, claimed the suit property (which are agricultural lands) as the surviving members of the coparcenary and urged that appellant Radhi Bewa who is the widow of a deceased coparcener whose death took place prior to 1937 was entitled only to maintenance. Radhi Bewa's main contention however was that though she became a widow prior to 1937 there was nothing in the provisions of the Hindu Women's Rights to Property Act, 1937 to disentitle her from claiming an interest in the property of her deceased husband under Sub-section (2) of Section 3 of that Act in view of the fact that the coparcenary has yet been disrupted. She, therefore, claimed the share of her deceased husband. My lord the Chief Justice took the view that though the Hindu Women's Rights to Property Act, 1937 (Act XVIII of 1937) as amended by the amending Act of 1938 (Act XI of 1938) was not retrospective in the broad sense in which it is ordinarily understood yet there was nothing in that Act to prevent the widow of a deceased coparcener who died prior to 1937 leaving an interest in the joint family from claiming that interest when that interest had not vested in any person either by partition amongst the coparceners or otherwise.

(3.) The Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as the Act) as amended by the Act of 1938 was held by the Federal Court in Hindu Women's Rights to Property Act, 1937, In the matter of A. I. R. (28) 1941 P. C 72, to be inapplicable to agricultural lands. Thereupon the Orissa Legislature passed an Act in 1944 (Orissa Act V of 1944), extending the Act to agriculture lands in Orissa and giving retrospective effect to the same. Before the Division Bench it was contended, relying on the word 'always' in Section 2 of the Orissa Act, that the Orissa Act had unlimited retrospective effect. But this contention was rightly given up by Mr. Mohanty on behalf of the appellants at the time of arguing the appeal. The retrospectivity of the Orissa Act extends to the date of the commencement of the Central Act of 1937. It is, therefore, unnecessary to discuss the true meaning of the expression 'always' occurring in the Orissa Act which has been dealt with at some length in the judgments of the learned Judges who constituted the Division Bench. The sole question for consideration by the Special Bench is whether the benefits of Sub-section (2) of Section 3 of the Act are available to a Hindu woman who became a widow prior to the passing of the Act but whose husband's interest in the joint family property had not vested in any other person either by partition of the joint family property or by valid alienation. A decision of this question depends on a construction of Section 3 (2) of the Act along with other provisions of the Act such as Sections 2, 4 and 5. Though the Act is a small one consisting of five sections its construction is by no means easy and as pointed out in Mayne's Hindu Law, 11th Edition, at page 701, the Act even after the amendment of 1938 "remains defective and obscure in some respects." The difficulties in construing that Act have also been fully discussed at pages 4 to 10 of the report of the Hindu Law Committee, 1941. I must, therefore, confess to a feeling of diffidence in approaching the subject especially when my lord the Chief Justice and my learned brother Justice Das for both of whom I have the greatest respect have taken two divergent views.