TRISUL MAHTO Vs. DOMAN MOHTO

JUDGEMENT

(1.) The question of law involved in this appeal is whether the share of ancestral properties allotted to Bauku on partition is "separate property" within the meaning of Section 3 (1) of the Hindu Women's Rights to Property Act (Act No. XVIII of 1937).

(2.) The plaintiffs Doman Mahto and Satranghan Mahto brought the suit on the allegation that they had obtained title to the disputed land by purchase from defendant No. 5, Mt. Jajba, by a registered Kobala dated the 3rd March, 1947. The case of the plaintiffs was that Makhan had four sons, Bauku, Sube, Trisul and Jugeshwar. Trisul and Jugeshwar are defendants 1 and 2. Sube died leaving a widow, Musammatt Jiwachi, defendant no, 4. Bauku died on the 1st of" December, 1946, before his son Chandreshwar. The case of the plaintiffs is that Musammat Jajba, defendant No. 5 was entitled to 1/4th share of the properties of Makhan and that the Kebala executed by defendant No. 5 on the 3rd March, 1947, conveyed valid title to the plaintiffs with regard to 1/4th share of the properties of Makhan. The trial court found that Bauku and his brothers had separated in 1943, that Chandreshwar died first, on the 1st of Novembar, 1946, and that Bauku died on the 1st December, 1946, about a month later. The trial court also found that the plaintiffs were not entitled to 16 kathas 19 dhurs, as stated in the plaint, but were only entitled to 14 kathas 9 dhurs. The Munsif accordingly gave a decree for joint possession to the plaintiffs along with defendants 1, 2, 3 and 4. The finding of the Munsif was affirmed by the learned Subordinate Judge of Darbhanga. On the question of the quantum of the area purchased by the plaintiffs, the learned Subordinate Judge held that the calculation of the Munsif was not correct and there was no material on the record to determine what wa9 the area to which defendant No. 5 was entitled. The learned Subordinate Judge, therefore, granted the plaintiffs a decree for 1/4tn share of Makhan, namely, the share obtained by Bauku on partition without mentioning any specific-area of land.

(3.) The sole question for determination in this appeal is whether the plaintiffs are entitled to the entire share of Bauku on partition, namely, the 1/4th share of the properties of Makhan, or whether the plaintiffs are entitled to a decree for possession of half the share of Bauku, or, in other words 1/8th share of the ancestral properties of Makhan. On this point learned Counsel for the defendant-appellants made the submission that the property obtained by Bauku on partition in 1943 was not 'separate property.' within the meaning of Section 3 (1) of the Hindu Women's Rights to Property Act, and that the daughter-in-law of Bauku, defendant No. 5 had, therefore, no right to the entire share of Bauku. In support of this proposition learned Counsel relied upon a decision of the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 FC 25 (A). The opposite view point wag put forward by learned Counsel for the respondents and it was submitted that the share obtained by Bauku on partition of the joint family properties was 'separate property' within the meaning of Section 3 (1) of Act' No. XVIII of 1937, and, therefore, the lower courts were right in granting a decree to the plaintiffs for the entire share of Bauku in the ancestral properties. In supports of his argument learned Counsellor the-respondents relied upon a decision of a Division Bench of the Patna High Court in Nandkumari Devi v. Bulkan Devi, ILR 23 Pat 508 : (AIR 1945 Pat 87) (B). In our opinion, the argument addressed by learned Counsel for the appellants is correct and it must be held that the share obtained by Bauku on partition of the joint family properties was not 'separate property' within the meaning of Section 3 (1) of Act No. XVIII of 1937. It is true that a Division Bench of this High Court, held in ILR 23 Pat 508: (AIR 1945 Pat 87) (B) that the expression 'separate property' in Section 3 (1) of Act No. XVIII of 1937 meant property which the intestate held separately, in the sense that he held it without the participation of other coparceners. Taking this view of law, the learned Judges of the Division Bench held that the share of a coparcener obtained on partition was 'separate property' within the meaning of Section 3 (1) of the statute. But the principle of this decision is not authoritative in view of the subsequent decision of the Federal Court in AIR 1945 FC 25 (A). It was explained in that case that the expression 'separate property' may be the antithesis of the other expressions, namely, 'ancestral property" 'coparcenary property' and 'joint family property' and it was necessary to determine in the light of the Scheme of the Act, the particular sense in which the expression has been used in Section 3 (1). It was held by Varadachariar J. who pronounced the opinion of the Federal Court that the expression 'Separate property' ought to be construed in the light of the context of the Act and in the light of the Scheme of the Act and that property held by a Hindu as the last serviving coparcener of a joint family cannot be regarded as 'separate property' within the meaning of Section 3 (1). It was pointed out by Varadachariar J. in the course of his judgment that in the case of self-acquired property the owner's power of disposition will continue to remain undiminished throughout his lifetime unless he chooses voluntarily to throw it into the joint family stock: but in the case of property obtained as a share on partition, or in the case of property held by a coparcener as the sole surviving coparcener, there was this difference that the power of disposition was qualified and the interest of the coparcener was reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption. It was, therefore, not right to place all the three kinds of property on the same footing merely on the ground that at a particular point of time the owner of the property may enjoy unrestricted power of disposition over them. A narrow interpretation, was, therefore, placed by the Federal Court on the expression 'separate property" in Section 3 (1) of the statute and it was held that property held by a Hindu as the last surviving coparcener of a joint family could not be regarded as 'separate property' within the meaning of Section 3 (1) of Act XVIII of 1937. The view thus expressed by the Federal Court must manifestly take precedence over the view expressed by the Patna High Court in ILR 23 Pat 508: (AIR 1945 Pat 87) (B). Applying the principle of the Federal Court decision we hold in this case that the property obtained by Bauku on partition from his three brothers is not 'separate property' in his hands within the meaning of Section 3 (1) of Act XVIII of 1937 and, therefore, Musammat Jajba, defendant No. 5 has no title to all the properties obtained by Bauku on partition.