BINDROO Vs. MUNSHI

JUDGEMENT

(1.) THIS civil second appeal which is directed against the judgment and decree dated August 13, 1970 of the learned Additional District Judge, Jammu, affirming the Judgment and decree dated March 15, 1969, of the Sub Judge (C. J. M.) Jammu, declaring the will dated June 20, 1963, executed by Mst. Pahto, widow of Shaman Brahmin, resident of Larangan, Tehsil Samba, in favour of the appellant as in -operative and ineffective so far as the plaintiff -respondents rights to the properties conveyed by the will were concerned, is concluded by findings of fact.

(2.) IT has been concurrently found by the courts below that Jawala and his four sons including Shaman, the husband of Mst. Pahto, constituted a joint Hindu family, that after the death of Jawala his sons Mathura, Deelu, Shaman, and Duhla continued to constitute a joint and undivided family, that Shaman predeceased his brothers without leaving any issue, and that no partition ever took place between the members of the coparcenary either during the life time of Jawala or after his death.

(3.) MR . Rounaq Singh appearing on behalf of the appellant has not challenged the findings of fact arrived at by the courts below. The short point taken by him is that Mst. Pahto having entered into possession of 23 Kanals and 10 Marlas of land comprised in Khasra Nos. 117, 423/129/424/179, 198, 199 and 200 situate in village Larangan before the commencement of the Hindu Succession Act, 1956, became a full owner of the property after the coming into force of the Act and as such was competent to will away the property. He has in support of his contention relied on the words "Any property possessed by a female Hindu" occurring in Section 14(1) of the Act. I regret I am unable to accede to this contention which appears to be based upon a total mis -conception of the provisions of the Act. Shaman having died before the coming into force of the Act and no partition having taken place between him and his three brothers, his widow, Mst. Pahto, who could not be a member of the coparcenary under the Shastrik Hindu Law, had merely a right of maintenance out of the joint family property but had no title to the property as such. Not having a pre -existing limited right to the property at the time of the coming into force of the Hindu Succession Act she did not as a consequence of the Act become a full owner of the property in question so as to entitle her to will away the property. The Act, in my opinion, conferred upon a Hindu female full rights of ownership and removed the clog on her power of disposition only in respect of the properties which could be said to have belonged to her in a limited way. Section 14 of the Act only converted the interest of a Hindu female which prior to the Act was a limited one into an absolute interest. In other words it conferred on a Hindu female full right of disposal over the property which she in someway owned. The right to maintenance out of the joint family property is not an interest which can be said to be possessed by a Hindu female within the meaning of the Act.