ABHINA SAHU Vs. DAITARI SAHU

JUDGEMENT

(1.) THIS is an application in revision by the defendant against the decision of the small Cause Court Judge, Cuttack, holding on a preliminary issue that the widow-plaintiff is entitled to bring the suit along with other plaintiffs, and accordingly the suit is maintainable. The plaintiff's suit is based upon a pro-note executed in favour of one deceased Saratha Sahu who is the husband of plaintiff 2 and father of plaintiff 1 and uncle of plaintiff 3. The dclence of the defendant-petitioner was that the suit by the widow-plaintiff is not maintainable in the absence of a succession certificate as provided under section 214 of the Indian Succession Act. The learned Small Cause Court Judge held relying upon a decision of this Court reported in Ganga-dhar Raut v. Subhashiiri Bewa, (S) AIR 1955 Orissa 135 (A), to the effect that the devolution ol an estate on the Hindu widow under Section 3 (2) of the Hindu Women's Rights to property Act is neither by survivorship, nor by inheritance, but is a special right created in favour of the widow by the special Statute. In that decision of this court, their Lordships did not follow the view of the Patna High Court reported in kedar Nath v. Radha Shyam, AIR 1953 Pat 81 (B), as also the case reported in sive-shwar Prusad Narain Singh v. Har Narainmal, AIR 1945 Pat 116 (C ).

(2.) THE point raised by Mr. R. Mohanty, learned counsel for the petitioner undoubtedly is a very interesting one. He contended that the widow-plaintiff having succeeded to the interest of her husband, cannot maintain the present suit without obtaining a succession certificate. Section 214 of the Indian Succession act runs as follows:

(3.) THE position doubtless is now for the better after the introduction of the New succession Act whereby the widow gets the absolute right. Mr. Misra referred to another decision of the Madras High Court reported in Venkatalakshmi Ammal v. Central Bank of India, Ltd. 1956-2 Mad LJ. 114 (H), where it was held that the object of taking out a succession certificate under Section 214 of the Indian succession Act is to give security to the debtors paying the debts due to the deceased and thus facilitate the collection of debts on succession. The purpose of the Act is not to enable litigants to have an opportunity of litigating contested questions of title to property. Under Section 3 (1) of the Hindu Women's rights to Property Act, the widow of a deceased gets a statutory right to the separate property of her husband. She does not get the right by succession which would entail the taking out of a succession certificate. It is a special statutory right which the widow gets under the particular enactment. She stands in the shoes of her husband and is entitled to collect the amount due to her husband. It was further held fhat it is no doubt true that the position of a widow is betwixt and between, but it is certainly clear that she does not get this separate property by succession which would entail the taking out of a succession certificate. Reference may usefully be made to a decision of the Bombay High Court reported in Nagappa Narayan v. Mukumbe, AIR 1951 Bom 309 (I ). I may also refer to a decision of the Allahabad High Court in Kallian Rai v. Kashi Nath, AIR 1943 All. 188 (J) where it was held that there is no automatic partition of the joint family in the joint family property. But so long as partition has not been made, the status of a joint Hindu family continues and although she may not be a coparcener with the other sharers in the sense that the principle of survivorship no longer subsists, it cannot be said that she is not a member of a joint Hindu family as long as there is no partition. She is therefore; capable of being represented by the karta of the family in business transactions and suits by the Karta. In view of the above decisions and particularly of the Federal Court with utmost respect, I am unable to follow the Patna view. It appears that the Federal Court decision referred to above was not brought to the notice of their Lordships.