Panigrahi, C.J.
1. This case comes before us on a reference by a Division Bench. The question referred to us for our opinion is formulated as follows :
'Whether the provisions of Section 3(2), Hindu Women's Rights to Property Act, 18 of 1937 as amended by Act, 11 of 1938 are retrospective so as to apply to the case of a widow whose husband died prior to the date when the said Act came into force.'
This reference was necessitated on account of the majority decision in -- 'Badhi Bewa v. Bhagawan Sahu', AIR 1951 Orissa 378 (SB) (A), according to which Section 3(2) of the Act is retrospective in operation and, consequently, the widow of a Hindu who died before the Act came into force, viz., before 14-4-1937, was entitled to her husband's share provided that the joint family continued till the date when partition was demanded. This view was subjected to much adverse criticism by another Bench of this Court in -- 'Nandakishore v. Sukti Dibya', AIR 1953 Orissa 240 (B). In a later case decided by Narasimham and Mohapatra JJ. in -- 'Haramoni v. Dinabandhu', AIR 1954 Orissa 54 (C), Narasimham J. reiterated his view that Section 3(2) of the Act was retrospective though the case was decided on the footing that the decision of the Special Bench in Radhi Bewa's case (A), did not apply to the facts of that case while Mohapatra J. stuck to his view in Nandakishore's case (B).
2. The decision in Radhi Bewa's case (A), has not been followed either in this Court or in any other Court since its pronouncement and its importance, as a precedent, has been considerably affected by the later decisions of this Court. It would appear, therefore, that decision has been ploughing a lonely furrow with its wings clipped and has proved a fertile source of speculative litigation giving rise to a progeny of debatable problems. It has stood so long more as a warning to be guarded against, than as an authority to be respected. It has, therefore, become necessary for the Division Bench to refer the question, as formulated above, to the Full Bench so that the conflict of opinion may be resolved finally.
3. The determination of the question whether the majority decision in Radhi Bewa's case (A), is correct would depend upon the true construction of Section 4. For a clear understanding of the position, I may quote Sections 2 to 5 :
'2. Notwithstanding any rule of Hindu law or custom to the contrary the provisions of Section 3 shall apply where a Hindu dies intestate.
3. (1) When a Hindu governed by the Dayabhaga School of Hindu law 'dies intestate' leaving any property, and when a Hindu governed by any other School of Hindu law or by customary law dies intestate leaving separate property his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of Sub-section (3) be entitled in respect of property in respect of which he dies intestate, to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son, if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son.
Provided further that the same provision shall apply 'mutatis mutandis to' the widow of a pre-deceased son of a predeceased sort.
(2) When a Hindu governed by any School of Hindu Law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this Section shall be the limited interest known as a Hindu woman's estate provided, however, that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this Section shall not apply to an estate which, by customary or other rule of succession, or by the terms of the grant applicable thereto, descends to a single heir, or to any property, to which the Indian Succession Act, 1925 applies.
4. Nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act.
5. For the purposes of this Act a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.'
4. The reasoning adopted by Narasimham J. is that the Act being a, remedial Act, should be so interpreted as to embrace within its scope persona who became widows not only after the commencement of the Act, but also those who became widows before the Act came into force 'so long as the interest which the husband had in the joint family property at the time of death had not vested in any individual'. In arriving at this conclusion the learned Judge was considerably impressed by the omission of the word 'intestate' after the word 'dies' in Sub-section (2) of Section 3, as amended in 1938, and its retention in Section 4, and inferred that the Legislature had thereby indicated that Section 4 should not in any way control Sub-section (2) of Section 3.
Ray, C.J. on the other hand was of opinion that the Legislature made a distinction between a Hindu who 'dies intestate leaving any property' as mentioned in Sub-section (1) of Section 3 and a Hindu who 'dies having at the time of his death an interest in a Hindu family property' used in Sub-section (2) of Section 3. Section 4 says that 'nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act'. The use of the word 'property' in Section 4 led Bay C.J. to think that it was intended to govern cases comprised in Section 3(1) alone and not to the case of a Hindu who dies leaving 'an interest in a Hindu Joint family property' referred to in Sub-section (2) of Section 3. The learned Chief Justice therefore held that Section 4 is an exception to Section 2 of the Act which declares, in general terms, that the provisions of Section 3 shall apply when a Hindu dies intestate. Another reason given by the learned Chief Justice is that to hold that both these sub-sections of Section 3 are prospective in operation would be to deprive the widow of a predeceased son or grandson of the benefits of the Act. Here is the passage in which the reasoning is given in support of this proposition (at para. 11 of his judgment) :
'Suppose the Act operates only in cases where a Hindu dies after the Act both within the meaning of Sub-sections (1) and (2) of Section 3. Take a Hindu dying after the Act who leaves, besides his widow, a daughter-in-law and grand daughter-in-law whose husbands predeceased him before the Act. The rule of devolution of interest on the last two widows will operate differently according as Sub-section (1) or (2) of Section applies. In the former case they should each get the share of a son or grandson along with the widow, but in the latter case they will get nothing, while the deceased's widow will get the entire interest. This will happen because their husbands died before the Act'.
I am unable to subscribe to this reasoning as the widow of a predeceased son or grandson can stall avail herself of the benefits of Sub-section (2) of Section 3 which applies to a Hindu who died having at the time of his death an interest in a Hindu Joint family property. The predeceased son or grandson was a coparcener in the family and died leaving his widow. His interest would devolve upon his widow and it will make no difference to her right to share in the coparcenary property under Sub-section (2) of Section 3. The result of the majority decision is that a Mitakshara widow whose husband died prior to the commencement of the Act can claim the share of her husband under Section 3 (2) while a Dayabhaga widow is entitled to no such right and she can reap the benefits of the Act only if her husband had died after the commencement of the Act. Could the Legislature have intended to make such a distinction between the two classes of Hindus, or between the separate property and the coparcenary property of a Hindu dying intestate which are provided for in the two sub-sections of Section 3
As I read the Act, no such result was ever Intended as the Act itself in its preamble says that it was expedient to amend the Hindu-law to give 'better rights' to women in respect of property. These rights of Hindu women, in general were sought to be improved and the interpretation of the Act must, therefore, be such as to givethem 'better rights' in respect of property; Section 3 also is in general terms and says that
'notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate leaving a widow'.
The rule of Hindu law which deprived a widow of any right in the property of her husband and gave her only a right to maintenance was sought to be amended by this provision and it was, therefore, necessary to enact Section 2 which, in express language, abrogated the existing law to the contrary. Section 3 provides for two classes of property left by a Hindu. Sub-section (1) of that Section deals with property over which a Hindu has a power of disposition by a testament. Such property, in the case of a Dayabhaga Hindu, is the share in the joint family property, and in the case of a Mitakshara Hindu is his self-acquired property. Both these kinds of property are capable of being disposed of by a Will. Sub-section (2) of, Section 3 applies to ordinary coparcenary property of a Hindu when he dies as an undivided member of a Mitakshara family. Such property is incapable of being disposed of by a Will. The frontier dividing self-acquired and coparcenary properties is recognised by the two parts of Section 3 and the right to succeed to either kind of property is conferred by the two sub-sections. Section 4 is a saving clause which says that 'nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act'.
5. The expression 'dies intestate' was used in Sections 2, 3 and 4 in the Act as it had been passed in 1937. But the word 'intestate' was omitted from Section 3 (2) by the amending Act 11 of 1938, as the Legislature thought that the use of the word 'intestate' in relation to the undivided interest of a Mitakshara Hindu was 'inapt'. A new Section 5 was added to define the word 'intestate' so that there may be no confusion in its application to coparcenary property. That Section says:
'For the purpose of this Act, a person shall be deemed to die intestate in respect of property of which he has not made a testamentary disposition which is capable of taking effect'.
This means that if a person dies owning property which cannot be disposed of by a testamentary document, he shall be deemed to 'die intestate' for the purposes of the Act. It would follow, therefore, on a plain reading of Section 5 that, by a legal fiction, an undivided member of a Hindu Mitakshara family must be deemed to 'die intestate' in respect of his interest in the coparcenary property as he cannot make a testamentary disposition which is capable of taking effect. The retention of the word 'intestate' in Section 3 (2) was, therefore, otiose and it had to be deleted. Otherwise the Act makes no distinction between the two classes of Hindu and the two classes of property.
6. Narasimham J. was inclined to put what appears to me to be a narrow construction upon the expression 'die intestate', and in his opinion Section 5 applies only to the case of a man who had no testamentary capacity. According to the learned Judge:
'the expression 'die intestate' has reference to a person who having the capacity to make aWill either omits to execute a Will at all or executes a Will which is found to be invalid due to other causes. It will, therefore, not be good English to say that a 'minor died intestate' or else that 'a congenital idiot died intestate' because neither of them has the capacity to make a Will. The position of a coparcener in an undivided Hindu family is of a similar type in respect of his interest in the joint family property and Section 4 cannot be applicable to him in respect of that interest.'
The reference in Section 5 is not to the personal capacity of a person but to the character of the property 'of which he has not made a testamentary disposition which is capable of taking effect'. The Act does not purport to deal with Wills as such or the testamentary capacity of a Hindu testator. Its purpose is to confer on a widow a right in the property of her husband which he could not bequeath by a will irrespective of his capacity. There is no reason to restrict the operation of Section 5 to cases where a will is found to be void by reason of the personal incapacity of the testator. A Hindu coparcener in a Mitakssara family can dispose of his separate property by a will or confer an authority on his widow to adopt a son, by a will. He can similarly dispose of his property acquired from his maternal grandfather. It is, therefore, incorrect to say that he has no capacity to make a testamentary disposition. His coparcenary interest, however, is not disposable by a will.
7. That this is the correct interpretation to be put upon Section 5 can no longer be challenged in view of the latest pronouncement of the Supreme Court In -- 'Sm. Angurbala v. Debabrata', AIR 1951 SC 293 (D). In that case, it was contended that the language of the Section is wholly inappropriate if the Act is applicable to properties in respect of which no testamentary disposition is possible. Mukherjea J. (as he then was), delivering the judgment of the Court observed as follows Cat pp. 297, 298):
'This argument, in our opinion cannot be accepted as sound. Section 2 of the Act which has been referred to above, makes the provisions of Section 3 applicable only when a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left no will disposing of his property. A doubt might arise as to whether this Act would apply when a will was actually executed by the deceased, but for some reason or other it was incapable of taking effect, and it was for the purpose of removing such doubt that this Section was added by the amending Act of 1938. The language of Section 5 of the Act is exactly the same as that of Section 30, Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a will is not enough to exclude the operation of the Act. The will must be an operative will and if the will is void or incapable of taking effect, it would be deemed that the testator died intestate. If the property is 'non-testamentable' as Mr. Banerji puts it no disposition is possible, or could take effect in law; and the testator must, in such circumstances, be deemed to have died intestate in respect of such property.'
In view of this categorical pronouncement of the Supreme Court much of the reasoning on whichthe learned Judges who constituted the majority in 'Radhi Bewa's case (A)', based their decision, must be held to be erroneous.
8. It must also be held that no distinction was intended to be created by the Legislature by the use of the expression 'property' in Section 3 (1) and 'interest in property in Section 3 (2), and that the Act governed both these categories of property. In 'Angurbala's case (D)', it was held that the expression 'any property' occurring in Section 3(1)
'prima facie includes, unless something to the contrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of property in law.'
In that case the sebayati right of a Hindu was held to be 'property' within the meaning of the Act.
9. I am of the opinion that the distinction sought to, be introduced by Ray C. J. in 'Radhi Bewa's case (A)', between 'property' and 'interest in property' is bereft of authority. Ordinarily the power of alienation and disposition is a normal feature of ownership of property but these are not essential elements in the conception of property. The right of ownership in property may exist irrespective of its being restricted in point of duration, A limited interest in property is not formally disposable by will, but is nonetheless property. When we speak of property we mean the right to or interest in property though the material object to which the right relates is identified with the right by way of metonymy. A specifically enforceable contract creates a proprietary interest in the property agreed to be sold. The right of a Hindu coparcener is not heritable and his death is an extinctive and not a divestive fact. Thus, a lease, either for life or for a period, is not heritable, but the interest in leasehold property is itself property. Similarly the interest of the holder of a service tenancy is inalienable though ordinarily heritable. The holder of an impartible estate in the Madras State cannot alienate it though his interest is heritable. His interest though restricted, is nonetheless property.
When the law declares the interest of an undivided Hindu coparcener to be inalienable it only means that he cannot appoint a representative to succeed to his interest by a will or other dispositions. His interest, under the law, lapses by survivorship to the living coparceners, but the owner-ship of the property by the coparcener subsists and is left unaffected. The Hindu Women's Rights to Property Act appoints a representative to represent the deceased by vesting his interest in his widow. She is identified by the law with her husband though, in a restricted sense. It gives effect to the old Hindu law conception that he lives in her and that she is the surviving half of her deceased husband. Thus a fictitious continuation of the personality of the deceased is brought about by the Act and it is idle to speculate whether that right is acquired by the widow by inheritance or survivorship, according to our pre-conceived notions of the position of a Hindu widow prior to the passing of the Act. Section 5 merely emphasises the limitation imposed by law on the power of the dead over the living in a coparcenary. He cannot so order the destination of his interest by testament as to check the rule of survivorship and has therefore to die intestate in respect of his interest in the coparcenary, regardless of his will one way or the other, either expressed or not, in a testamentary document. The Act is undoubtedly ill drawn but few would doubt that its meaning is reasonably clear. Ideal language and perfect phraseology cannot be expected in a piecemeal legislation whose object is to remedy a specified defect in the existing law. The reasoning of the majority Judges in 'Radhi Bewa's case (A)', based on this erroneous assumption of a difference between 'property' and 'interest in property' appears to me to be opposed to the fundamental juristic conception of property.
10. Section 4, Hindu Women's Rights to Property Act was also discussed in 'Angurbala's case (D)' and the retrospective character of the Act was examined. In the opinion of Mukherjea J. 'Section 4 lays down that the Act is not to operate retrospectively'. Reference may also be made to the view of Varadachariar J. in -- 'Umayalachi v. Lakshmi Achi', AIR 1945 FC 25 CE), where that very learned Judge observed that
'that Act is prima facie prospective and its proper construction & operation must be determined with reference to conditions and contingencies likely to arise after its commencement because these alone could, presumably, nave been within its contemplation.'
It would not be out of place to refer to the views of some of the text-book writers on the retrospective character of the Act. In the latest Edition of Mayne on Hindu Law 'Radhi Bewa's case (A)' has been referred to at p. 707 and the foot-note g (1) reads thus:
'The decision of the majority Judges in the Special Bench of the Orissa High Court in 'AIR 1951 Orissa 378 (A)', ........ that the benefit of Section 3 (2) would be available to a woman who became a widow prior to the passing of the Act is, it is submitted, erroneous'.
Mulla's Hindu Law edited by Mukherjea J. of the Supreme Court says at p. 25. 'The Act is not retrospective' and at p. 35 he indicates the order of succession among Sapindas thus; 'Son, grandson (son's son) and great grandson (son's son), and after 14-1-1937 (the date of commencement of the Hindu Women's Rights to Property Act), the widow, predeceased son's widow, predeceased son's predeceased son's widow. The right to succeed, given to the widow after the son, grandson and great grandson is shown to arise only after 14-4-1937 when the Act came into force.
11. It would appear therefore, that there is no room for any further controversy as to whether the widow of a Hindu dying before the commencement of the Act can take any benefit at all under it. The result of the majority view in 'Radhi Bewa's case (A)' has been singularly unfortunate. I say so with sincere regret as it has given rise to a considerable amount of fruitless litigation in the subordinate Courts and raised hopes which can never be fulfilled.
12. In the result we are of opinion that the view taken by the majority in the Special Bench case of 'AIR 1951 Orissa 378 (A)', is erroneous and that the case has been wrongly decided. We would accordingly answer the reference made to us inthe negative and hold that the provisions of the Act have no retrospective effect so as to apply to the case of a widow whose husband had died prior to the date of commencement of the Act, namely 14-4-1937. We accordingly overrule that decision.
This case will now go back to the Division Bench which made the reference, with our opinion, for disposal according to law.
Mohapatra, J.
13. I agree.
P.B.V. Rao, J.
14. I entirely agree with my Lord the Chief Justice.