SUDAMAWATI KUER Vs. RAM CHANDRA SINGH

JUDGEMENT

(1.) The petitioner, Sudamawati Kuer, is the widow of one Rambharosa Singh of village More, within police station Mokama, in the district of Patna. Opposite party No. 1, Ramchandra Singh, is a minor son of Rambharosa Singh; Ramlakhan Singh, opposite party No. 2 is the father-in-law or Ramchandra Singh (opposite party No. 1) and Janardgn Singh, opposite party No. 3, is the brother of Ramlakhan Singh. Opposite party Nos. 4 and 5 are not interested. The application arises out of a proceeding under Section 145 of the Code of Criminal Procedure and relates to the properties left behind by Rambharosa Singh, who died sometime in 1949. On the 23rd of Juns, 1953, the petitioner, Sudama-wati, was appointed guardian of the minor. In 1956, Ramchandra Singh was married to the daughter of Ramlakhan Singh. On account of certain differences which cropped up between the petitioner and Ramlakhan Singh, she applied to the District Judge to be discharged from the guardianship of the minor. The tension between the parties gave rise to a dispute causing an apprehension of the breach ot peace. Accordingly, on the 21st February, 1958, a proceea-ing was started between them under Section 144 of the Code of Criminal Procedure for the prevention of the breach of peace. On the 22nd of April, 1958, an order was passed by the Magistrate that the minor was in possession ot his share of the property. On the 16th of June, 1958, there was another proceeding under Section 144 which was converted into a proceeding under Sectoin 145 of the Code on the 3rd of September, 1958. The application or the petitioner to the District Judge for being discharged from the guardianship was allowed on the 11th of June, 1959, and an order was passed by the learned District Judge on the 27th of November 1959, directing that Schedule 2 properties should be handed over to the maternal uncle of Ramchandra Singh, but no order was passed in respect of schedule 1 property. The proceeding under Section 145 of the Code of Criminal Procedure which relates to schedule 1 property could not be disposed of by the learned Magistrate because in his opinion it involved difficult questions of fact and, accordingly, on the 20th August, 1959, he referred the question regarding the claims of possession of the parties to the Civil Court under Section 145 (i) of the Code of Criminal Procedure for a finding as to which party was in actual possession. The Munsif of Barn, on a consideration of the evidence, returned a finding that the Mossamat, i.e. the petitioner, was in possession of the property as guardian of the minor. The petitioner is aggrieved by that order in so far as the learned Munsif has held her to be in possession only as the guardian of the minor and not in her own right in respect of halt the property to which she would be entitled as a Hindu widow, her husband having died in 1949 at a time when the Hindu Women's Right to Property Act, 1937 (Act 18 of 1937), governed the rights of Hindu women in joint family properties.

(2.) Learned Counsel for the petitioner has contended that the order of the learned Munsif is erroneous. He does not make any grievance that schedule 2 properties were the personal properties of Ramchandra Singh, step-son of tne petitioner, and she did not claim any interest in those properties. But so far as schedule 1 properties are concerned, which were left behind by her deceased Husband, she did have a right to be in possession as a Hindu woman stepping into the shoes of her husband after the latter's death. The joint family consisted of Rambharosa Singh, her husband, and Ramchandra Singh, her step-son (Opposite Party No. 1), and the properties being ancestral Ramchandra Singh would acquire a right to those properties at the time of his birth. But this would not deprive the petitioner (the widow of Rambharosa Singh) to claim half interest in the joint family properties in the same way as her deceased husband would hold a right to these properties which would be a moiety share. She was, no doubt, appointed a guardian or the minor, but this was obviously confined to her acting as a guardian of the minor's person and property to the extent to which the minor was entitled, which would be only to one-haif share; and merely because she wanted to act as tne guardian of the minor, it did not involve a turther consequence of deprivation, of the petitioner's own right and quantum of interest in the joint family property. The learned Munsif came to a wrong conclusion in passing an order to the effect that the petitioner was no doubt, in possession but only as a guardian of the minor as if the entire property belonged to the minor and the petitioner had no independent right of her own to the properties. Mr. Prem Lal, appearing for the opposite party, has not controverted the position that the petitioner would be entitled to the share which would be the share of her deceased husband and, furthe,r that after the Hindu Succession Act of 1956, the petitioner might claim an indefeasible and absolute right to the properties which would be inherited by her from her husband. Learned Counsel, however, contended that the legal position adverted to herein can only be considered in a civil suit regularly constituted for that purpose, but so far as the present order passed by the Magistrate is concerned, it cannot be challenged as being incorrect in any way, It may be stated that it is a case where the actual possession of the petitioner or of opposite party No. 1 is not in controversy. Admittedly, they are both in possession being the widow and son, respectively, of Ramonarosa Singh. The learned Magistrate, in spite of this fact, passed the order in question, mainly, on the ground that in Guardianship Case No. 22 of 1953 the disputed properties were mentioned as properties of Rambharosa Singh and on. the 22nd June, 1959, the District Judge ordered the petitioner to hand over charge of those properties, although there was an objection from her side that she was entitled to half the properties as the widow of Rambharosa Singh. The property concerned in the present proceeding must be deemed to be the property of minor opposite party No. 1, From this, the inference follows, as a matter of course, that the petitioner's right was not recognised in the guardianship proceeding by the learned District Judge of Patna. Mr. Indra Bhanu Singh has contended for the petitioner that the order sheet of the guardianship proceeding itself will show that the petitioner was to hand over charge to the newiy appointed guardian of opposite party No. 1 of only those properties which the minor inherited from other relations. Mr. K. S. Pandey, the then District Judge of Patna, overruled the contention on behalf of Ramchandra Singh that Sudama-wati, the petitioner, "had agreed to accept only maintenance and not to claim any share in the properties and, accordingly, she could not be held to have title to any portion of the property in her own right because she had agreed to accept only her maintenance. That matter, however, could not be decided by the District Judge in a summary proceeding like that under Guardianship and Wards Act. From this, the inference was clear that the Distiict Judge held the petitioner to be in possession of half the interest. Mr. Prem Lall for the opposite party No. 1 has contended that Mr. Shambhu Prasad Singh, who followed Mr. K. S. Pandey as the District Judge of Patna, clarified the order of Mr. Pandey more fully and directed the petitioner to hand over charge of the entire property of Rambharosa Singh to Ramlakhan Singh (opposite party No. 2), father-in-law ot Ramchandra Singh (opposite party No. 1). In view, however, of the order of Mr. K. S. Pandey, the order passed by Mr. Shambhu Prasad Singh in a proceeding under the Guardianship and Wards Act would be confined only to the interest of the minor in the joint family property and the learned District Judge had no jurisdiction to pass an order directing the petitioner to hand over charge of ail the properties to the newly appointed guardian of opposite party No. 1. In any. case, the position is admitted that she has not made over charge and as such she is in actual possession up to date. If opposite party No. 1 would, in law, be entitled to the properties left behind by his father ana his step-mother would have no right to it by virtue of an order passed by the District Judge in a proceeding under the Guardianship and Wards Act, it might be open to opposite party No. 1 to assert that right in a civil suit. The Magistrate, however, is concerned only with the question of actual possession in a proceeding under Section 145 of the Code of Criminal Procedure; and, admittedly, both the parties being in possession as members of the joint family, no partition having been effected so far, the order of the District Judge can be of no avail in determining as to which of the two contending parties would be held to be in exclusive possession of the entire joint family property.

(3.) This case was referred to a Division Bench by a learned single Judge on the ground that the findings of tne Civil Court under Section 146 of the Code of Criminal Procedure, on a reference by the Magistrate, could not be open to challenge by way of revision under Section 439 of tne Code or under Article 226 of the Constitution of India relating to the supervisory jurisdiction exercised by the High Court. The point has, however, been decided by the Full Bench of this Court in. Criminal Misc. No. 100 of 1962, (sic) 25-1-1963 reported in (AIR 1963 Pat 243) Raja Singh v. Mahendra Singh, and it has been laid down that although the finding of the Civil Court, on a reference by me Magistrate under Section 146, cannot be challenged by way of appeal, revision or review, the finding of that Court is still open to challenge if the finding has been acted upon by the Magistrate and an order passed in conformity with it, i.e. when the finding of the Civil Court has been integrated into the order of the Magistrate. In view of this decision, the learned Counsel for the opposite party has not contended that the order of the Civil Court cannot be revised in a suitable case by the High Court in exercise or its jurisdiction under Sections 435 and 439 of the Code of Criminal Procedure.