DHANWANTIA Vs. DEONANDAN MAHTO

JUDGEMENT

(1.) In the suit which is the subject-matter of this appeal the plaintiffs alleged that they were the sons of Bujhawan Manto who was the brother of Khublal Mahto who married two wives, Mosammat Murdani and Mosammat Lakhminia, defendants 3 and 4. Khublal had two daughters, Tapeshwari and Dhanwantia, defendants 1 and 2, through his wife Mosanimat Murdani, The plaintiffs alleged that Bujhawan and Khublal died on the 2nd of August, 1938, and, as the family was joint, the plaintiffs' claimed that they were entitled to the whole of the joint family property. The plaintiffs stated that the widow of Khublal, Mosammat Murdani, filed a complaint of a criminal offence against the plaintiffs and there was a compromise petition filed in that case on the 22nd of December, 1938. In paragraph 4 of the compromise petition the plaintiffs agreed to give 7.43 acres of Kast nakdi land and one house described in schedule 3 of the plaint to defendants 3 and 4 for their maintenance and there was a stipulation in the compromise petition that the defendants 3 and 4 would not alienate or transfer the properties given. The plaintiffs further alleged that on the 23rd of January, 1946, defendants 3 and 4 surrendered half share of the family properties described in schedule 4 of the plaint in favour of defendants 1 and 2. The plaintiffs brought the suit for a declaration that the deed of surrender dated the 23rd of January, 1946, was null and void and also prayed for confirmation of possession of the plaintiffs with regard to the properties described in schedule 4. The suit was contested by the defendants on the ground that in December 1937 there was separation in status between Khublal and Bujhawan and that defendants 3 and 4 inherited the share of Khublal after his death. It was also contended on behalf of the defendants that the compromise petition was illegal as there was stifling of prosecution and no effect could be given to the compromise. It was also said in defence that defendants 3 and 4 were perfectly entitled in law to surrender their interest in favour of defendants 1 and 2 in regard to their share of the family property. On these rival contentions, the lower Courts' have held in the first place that there was no separation between Khublal and Bujhawan and also that the plaintiffs' case with regard to self-acquisition was not true. It was further held by the lower Courts that the compromise petition was not illegal and that no registration was required as it was by way of family arrangement. The lower courts have, therefore, decreed the suit of the plaintiffs.

(2.) In support of this appeal preferred on behalf of the defendants, the Government Advocate argued in the first place that Khublal and Bujhawan died after the passing of the Hindu Women's Rights to Properly Act (Act XVIII of 1937) and tinder Section 3 (2) of that Act the widows of Khublal had half the interest in the joint family properties, that is, the same interest which was possessed by their husband, Khublal. It was also argued that the interest of the widows conferred by Act XVIII of 1937 was taken by the widows not by survivorship but by inheritance and, as a result, the property goes on their death not by survivorship but by inheritance to her husband's heirs. Counsel for the appellants also relied upon the case of Kannappa Chettiar v. Commr. of Income Tax, Madras 2 ITC 381 (Mad) (A) for the proposition that, when the co-parceners of a Hindu family filed separate written statements to the effect that they had become separate, that was sufficient to show the intention of the parties having separated and there would be separation of the joint family estate. It was pointed out by a Division Bench of this High court in the case of Ramsewak Singh v. Ramaprasad Singh AIR 1948 Pat 215 (B) that under the Hindu law it is not necessary that there should be a formal document executed by the parties concerned in order to effect a separation in estate; it was only necessary that one of the coparceners should clearly and unequivocally intimate to the other coparceners his desire to sever himself from the others and the consent of the other coparceners was wholly immaterial. It was also pointed out that the filing of a plaint unless subsequently withdrawn or of a written statement or giving of a notice to other coparceners by a coparcener that he desired to be separate from the rest of them was enough to effect separation in estate. In the present case there is the statement of the two widows in the complaint petition in the criminal case that Khublal was separate from his brother, Bukhawan. The effect of this statement of the widows is that there is separation in estate and, in view of the principle laid down in the case of Kedar Nath v. Radha Shyam, AIR 1953 Pat 81 (C), the property would go not by survivorship, but by inheritance to the heirs of their husband. The legal position has been made much stronger in favour of the widows by the enactment of the Hindu Succession Act. (ACT XXX of 1956). Section 14 of this Act declares that; "Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner". Section 15 is also important and lays down the general rules of succession in the case of female Hindu. Section 15 is in the following terms:--

(3.) For these reasons we hold that the suit of the plaintiffs must fail and this appeal must be allowed with costs. We would accordingly allow this appeal and set aside the decree of both the lower Courts and order that the suit of the plaintiffs must be dismissed with costs. The appellants are entitled to their costs throughout.