DHANPAL SINGH Vs. MTJANKI KUER

JUDGEMENT

(1.) This appeal by the defendants arises out of a partition suit instituted by the widow of a deceased member of an admitted joint Hindu family. The learned Subordinate Judge has passed a preliminary decree holding that the respondent is entitled to one-third share. The principal question raised in this appeal is the interpretation and applicability of Bihar Hindu Women's Eights to Property (Extension to Agricultural Land) Act 6 [VI] of 1942, hereinafter to be referred to as the Bihar Act.

(2.) The relationship of the parties appears from the genealogical table which is set out at page 7 of the paper-book. That is not disputed. The share of the widow of Babu Gopal Singh is also not in dispute, but what is disputed is that as Gopal Singh died in 1940 and at that time the Bihar Act was not in force, the respondent did not become entitled to any share to enable her to claim a partition. It was also argued that even if the Bihar Act is held to be retrospective, it cannot divest the defendants so as to vest one-third share in the estate in the widow.

(3.) The Hindu Women's Eights to Property Act(Act 18 [XVIII] of 1937) and its amendment by Act 11 [XI] of 1938 were held by the Federal Court in The Patiala State Bank In the matter of Hindu Women's Bights to Property Act, as inoperative to regulate succession to agricultural lands in the Governor's provinces. In order to get over this difficulty, the Bihar Act was passed by the Governor of this province on 16-7-1942 and it was published in the Bihar Gazette of the 22nd July of the same year. The preamble to the Ant shows that its object was to extend the operation of the Hindu Women's Eights to Property Act, 1937, and the Hindu Women's Rights to Property(Amendment) Act, 1938, to agricultural land in the province of Bihar. The preamble also shows that as many transactions had already taken place in the province of Bihar on the basis that women had acquired better rights under these two Acts in respect of agricultural land and as it was now established that these Acts did not operate to give them better rights in respect of agricultural land, and that in order to validate those transactions as well as to give women in future those better rights and for other purposes, it was expedient to extend the operation of those Acts to agricultural land with retrospective effect, but with certain savings. The substantial section of the Act is the second section which provides that the term property in these two Acts shall include and shall be deemed always to have included agricultural land, and then there is a first proviso, which is relevant in this case, that: where any person who, but for this Act would have been entitled to any property, has been in possession or has made a transfer thereof, his possession till the commencement of this Act shall be deemed to be as lawful, and the transfer made by him shall be deemed to be as valid, as If this Act had not been passed.