GANGADHAR ROUT Vs. SUBHASHINI BEWA

JUDGEMENT

(1.) This appeal arises out of a suit for a partition filed by Subhashini Devi, the widow of one Harimohan who died as an undivided member of a Hindu joint family consisting of himself and defendants 1 and 2 who are the appellants before us. Harimohan died in or about the year 1942. Items 13 to 18 of the properties mentioned in Schedule Ga attached to the plaint were purchased by defendants 1 and 2 under Exts. B to B-2 and Ex 2 between, the years 1943 to 1945. The appellants claimed that these items, which had been subsequently purchased, did not constitute the joint family property in which the plaintiff could claim a share as they were their self-acquisitions. The learned Subordinate Judge negatived this contention and gave a decree for partition in respect of all the properties, including the disputed items 13 to 18 of Schedule Ga.

(2.) The only point that has been strenuously urged before us is whether these items are liable to be partitioned as joint family properties. Mr. Sinha, learned counsel for the appellants, contends that the widow is entitled to a partition of only the properties as they existed at the time of the death of her husband while the rival contention urged on behalf of the respondents is that she is entitled to a share in her husband's interest in all the properties as they stood at the time of her suit for partition. A vast array of authorities has been placed before us in support of either view as the interpretation of Section 3(2) of the Hindu Women's Rights to Property Act, has led to a divergence of opinion among the different High Courts and among learned Judges of the same High Courts.

(3.) So far as the decisions of this Court are concerned, we have been referred to the earliest case on the subject, reported in --'Kunja Sahu v. Bhagaban Mohanty', AIR 1951 Orissa 35 (A) to which Ray, C. J. and myself were parties. There the question was whether a widow could alienate her husband's undivided interest in the coparcenary without suing for partition. The decision of the Bench was that she could. But we arrived at this conclusion through different processes, of reasoning. Ray, C. J. held that the interest devolving upon the widow under the Act must be deemed to be property and necessarily carried with it the incident of transferability while in the hands of the widow, irrespective of whether she enjoyed a limited or absolute interest. I held that as the Act itself laid down that the interest devolving on the widow is a limited interest known as the Hindu women's estate an alienation for necessary purposes was permissible. I was of the view that "the same interest" meant that the interest of the husband devolved on the widow to the same extent, that is, subject to the rights and obligations winch that interest had at the time of her husband's death. The next reported case of this Court is --Radhi Bewa v. Bhagwan Sahu', AIR 1951 Orissa 378 (B), decided by a Special Bench. The question before their Lordships in that case was whether the Hindu Womens' Rights to Property Act was retrospective so as to make its provisions available to a widow whose husband had died before the passing of the Act, The decision of the majority was that it was retrospective, while Das J., as he then was, took the contrary view. There are however a number of observations made by His Lordship which have been taken advantage of by learned counsel for the appellant and have been pressed upon us for our acceptance. On the question as to whether the interest that the widow acquires in a coparcenary is the same fluctuating interest as that of her husband, His Lordship observed: "For the purpose of the present discussion it may not be necessary to express any. final opinion as to whether those views are correct". Again, in paragraph 8 of the Judgment His Lordship observed that;