1. The appellants in Second Appeal No.291 of 1995 are the original defendant Nos.1 and 2 in Regular Civil Suit No.407 of 1986 filed by the respondent Tanabai, claiming a declaration that she is the owner of half portion of the suit property, being the daughter of one Vithoba Nimbarte, who was the owner. The Trial Court, by its judgment and order dated 31-12-2001, has partly decreed the said suit and the declaration is granted that the plaintiff is the owner of 1/3rd share in the suit property. Accordingly, a decree for partition of the suit property has been passed and an enquiry into mesne profit has been ordered.
2. In Regular Civil Appeal No.26 of 1992, the learned 2nd Additional District Judge, Bhandara, has modified the decree on 23-12-1994 by granting a declaration that the plaintiff is entitled to 1/4th share in the suit property, and accordingly a decree for partition and separate possession was maintained along with enquiry into mesne profit under Order XX, Rule 12 of the Civil Procedure Code. Hence, this second appeal by the original defendants.
3. The appellants in Second Appeal No.270 of 1995 are the original plaintiffs in Regular Civil Suit No.279 of 1986 filed for declaration that they are the absolute owners of the suit property, being the widow and the daughter of the deceased Chandrabhan s/o Vithoba Nimbarte and Radhabai and that the defendant had no legal right over the properties of Vithoba. The respondent Tanabai, the daughter of Vithoba and Radhabai, was joined as the defendant. The Trial Court, by its judgment and order dated 31-12-1991, partly decreed the suit, holding that the plaintiffs are the owners of 2/3rd share in the suit property.
4. In Regular Civil Appeal No.27 of 1992 preferred by the appellants, the Appellate Court, by its judgment and order dated 23-12-1994, has held that the plaintiffs are the owners of 3/4th share in the suit property. The plaintiffs being aggrieved by the decisions of the Courts below, have preferred Second Appeal No.270 of 1995 claiming that they are the absolute owners of the suit property.
5. Both the Courts have held that after the death of Vithoba on 23-1-1934, his widow Radhabai was not entitled to any share in the property of Vithoba as per the position prevailing prior to coming into force of the Hindu Womens Right to Property Act, 1937. For this purpose, the Appellate Court has relied upon Article 43 of Mullas Hindu Law, Sixteenth Edition, in which the heirs of first category are given on page 100 as under:
âSon, grandson (sons son) and great-grandson (sons sons son), and (after 14th April 1937) widow, predeceased sons widow, and predeceased sons pre-deceased sons widow.â
6. The divergence in the views taken by the Courts below is that the Trial Court has held that after the death of Chandrabhan, Radhabai was entitled to 1/3rd share in the property of Chandrabhan and after the death of Radhabai, her share will be inherited by the daughter Tanabai, and Bhagirathibai and Wanmala. The Appellate Court has, however, held that after the death of Chandrabhan, the mother Radhabai, will get half share and the widow Bhagirathibai will get half share. Thus, they became the joint owners of the suit property. Upon the death of Radhabai, her daughter Tanabai and Wanmala, the daughter of Chandrabhan, will be entitled to 1/4th share each in the suit property.
7. The Appellate Court has held that after the death of Vithoba, his widow Radhabai had a right of maintenance. Hence, after coming into force of Section 14 of the Hindu Succession Act, she became the absolute owner of half share in the suit property of Vithoba. After the death of Chandrabhan, his widow Bhagirathibai, was entitled to get the property as limited owner as per the provisions of Section 3 of the Hindu Womens Right to Property Act, as Chandrabhan had no Class I heir. According to the Appellate Court, Radhabai and Bhagirathibai were in possession of the suit property and by virtue of Section 14 of the Hindu Succession Act, 1956, they became the owners of half portion each of the suit property. Upon the death of Radhabai, Tanabai and Wanmala shall become the owners of 1/4th share each in the suit property.
8. On 6-1-1998, this Court admitted these appeals and granted interim stay to the judgments and decrees passed by the Courts below. The substantial question of law framed is as under:
âWhether Tanabai â respondent/original plaintiff is having any share in the property of Chandrabhan, who happens to be brother, either through her brother Chandrabhan or through her mother Radhabai, in view of the fact that her father expired in the year 1934 and her brother expired in the year 1952?â
9. A Hindu joint family consisting of Vithoba, his wife Radhabai, son Chandrabhan and daughter Tanabai, owned and possessed the ancestral property. Vithoba died intestate on 23-1-1934, leaving behind him his widow Radhabai, son Chandrabhan and daughter Tanabai. Hence, the first question is about the rights of widow Radhabai and daughter Tanabai in the ancestral property after the death of Vithoba. The Hindu Womens Right to Property Act, 1937 came into force with effect from 14-4-1937. Hence, the second question is as to the rights available to Hindu women after coming into force of the said Act. The son Chandrabhan died intestate in the year 1952, leaving behind him his mother Radhabai, sister Tanabai, widow Bhagirathibai and daughter Vanmala. Hence, the third question is about the rights of the heirs of Chandrabhan to succeed the ancestral property after his death. The Hindu Succession Act, 1956 came into force from 17-6-1956, and hence the fourth question is whether it confers any right to property upon the mother Radhabai and sister Tanabai in the ancestral property.
10. To consider all these questions, the position of law prevailing at the relevant time and the effect of coming into force of the Hindu Womens Right to Property Act, 1937 and the Hindu Succession Act, 1956, need to be considered.
11. A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her fathers family on marriage and becomes a member of her husbands family. A joint or undivided Hindu family may consist of a single male member and widows of deceased male members. The existence of at least one male member is essentially for constituting a joint family with other members. A Hindu coparcenary is a much narrower body than the Hindu joint family. The coparcenary not only consists of father and sons, but also grandsons, great-grandsons of the holder of the joint family property for the time being. It includes only those persons who acquire by birth an interest in the joint or coparcenary property.
12. The property inherited by a Hindu from his father, fathers father or fathers fathers is an ancestral property, whereas the property inherited by him from other relations is his separate property. If a Hindu inherits the property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited and the coparcenary consists of a father and a son. Even a wife, though she is entitled to maintenance out of her husbands property and has, to that extent, an interest in his property, is not her husbands coparcener, nor is a mother a coparcener with her son, neither a mother-in-law with her daughter-in-law.
13. Undisputedly, in the present case, there was no partition between Vithoba and his son Chandrabhan, when Vithoba was alive. Vithoba died intestate on 23-1-1934. Para 34 of Mullas Hindu Law regarding devolution of property in Chapter IV of the Order of Inheritance of Males According to Mitakshara Law, as was subsisting prior to coming into force of the Hindu Succession Act, 1956, is relevant and the same is reproduced below :
âPara 34 DEVOLUTION OF PROPERTY ACCORDING TO MITAKSHARA LAW
In determining the mode in which the property of a Hindu male, governed by Mitakshara law, devolves on his death, the following propositions are to be noted:
(1) where the deceased was, at the time of his death, a member of joint and undivided family, technically called coparcenary, his undivided interest in the coparcenary property devolves on his coparceners by survivorship (see Act XVII of 1937 and Para 35);
(2) (i) even if the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession according to the order given in Para 43, and not to his coparceners;
(ii) if the deceased was at the time of his death, the sole surviving member of a coparcenary property, the whole of his property, including the coparcenary property, will pass to his heirs by succession according to the order given in Para 43;
(iii) if the deceased was separate at the time of his death from his coparceners, the whole of his property, however acquired, will pass to his heirs by succession according to the order given in Para 43;
(3) If the deceased was reunited at the time of his death, his property will pass to his heirs by succession according to the rule laid down in Para 60 below.â
In terms of the proposition at Serial No.(1) above, where the deceased was, at the time of his death, a member of joint and undivided family, technically called coparcenary, his undivided interest in the coparcenary property devolves on his coparceners by survivorship.
14. Here, in the present case, after the death of Vithoba on 23-1-1934, his undivided interest in the coparcenary property devolved upon the sole coparcener Chandrabhan by survivorship. Hence, Chandrabhan became the absolute owner of the entire property, and neither Radhabai, the widow of Vithoba, and the mother of Chandrabhan, nor Tanabai, the daughter of Vithoba and the sister of Chandrabhan, acquired any right in the coparcenary property. Both the Courts below have held that after the death of Vithoba on 23-1-1934, his widow Radhabai was not entitled to any share in the property of Vithoba as per the position prevailing prior to coming into force of the Hindu Womens Right to Property Act, 1937. Hence, the said view cannot be faulted with.
15. The next question is what was the right available to Radhabai, the widow of Vithoba, after coming into force of the Hindu Womens Right to Property Act, 1937 with effect from 14-4-1937. Sections 3 and 4 of the said Act are relevant and hence the same are reproduced below:
â3. Devolution of property. -- (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 sons if there is surviving a son or sons son of such pre-deceased son:
Provided further that the same provisions shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(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 womans 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 a customary or other rule of succession or by the terms of the grant applicable thereto descends on a single heir or to any property to which the Indian Succession Act, 1925, applies.
4. Savings.â Nothing in this act shall apply to the property of any Hindu dying intestate before the commencement of this Act.â
As per the provision of Section 3(1) of the said Act, when a Hindu governed by the Mitakshara School of Hindu Law dies intestate leaving separate property, his widow shall, subject to the provision of sub-section (3), be entitled in respect of the property in respect of which he dies intestate to the same share as a son. In the present case, there was no partition between Vithoba and his son Chandrabhan prior to the death of Vithoba on 23-1-1934. Hence, though Vithoba died intestate, he did not leave any separate property. It was only a coparcenary property in the hands of the son Chandrabhan after the death of Vithoba. Hence, Section 3 of the said Act will not be attracted so as to make Radhabai entitled to even a limited interest in the property in question.
16. In the decision of the Apex Court in the case of Ramvishal(Dead) by LRs. and others v. Jagannathand another, reported in (2004) 9 SCC 302, relied upon by the learned Senior Counsel Shri Kaptan, it has been held that Section 4 of the Hindu Womens Right to Property Act, 1937 clearly lays down that the provisions of the said Act would not apply to the property of any Hindu dying before the commencement of the said Act. Since Vithoba died before coming into force of the said Act, Section 3 of the said Act would even otherwise not confer any right upon Radhabai.
17. According to the proposition at Serial No.(2)(ii) above, if the deceased was, at the time of his death, the sole surviving member of a coparcenery property, the whole of his property, including the coparcenery property, will pass to his heirs by succession according to the order given in Para 43. Para 43 provides the Order of Succession amongst Sapindas, considered by the Appellate Court, is as under :
âSon, grandson (sons son) and great-grandson (sons sons son), and (after 14th April 1937) widow, predeceased sons widow, and predeceased sons predeceased sons widow.â
Chandrabhan, the son of Vithoba, died in the year 1952. Upon the death of Chandrabhan, succession opened. The order of succession, as was prevailing at that time, which is reproduced above, in no manner entitles the mother or a sister of a sole surviving member of a coparcener any share in the coparcenary property. Hence, even after coming into force of the Hindu Womens Right to Property Act, 1937 and before coming into force of the Hindu Succession Act, 1956, Radhabai, the widow of Vithoba and mother of Chandrabhan, and Tanabai, the daughter of Vithoba, and sister of Chandrabhan, had no right to succeed the estate left by Chandrabhan.
18. The next question, which falls for consideration, is the effect of coming into force of the Hindu Succession Act, 1956 with effect from 17-6-1956. Whether by virtue of Section 14(1) of the said Act, Radhabai or, for that matter, her daughter Tanabai became the absolute owner of the suit property. The Courts below have recorded the finding that after the death of the son Chandrabhan, Radhabai throughout stayed with Bhagirathibai and Vanmala, the widow and daughter of Chandrabhan respectively. In the decision of the Apex Court in the case of Erammav. Veerupanaand others, reported in AIR 1966 SC 1879, the question was whether the Hindu Succession Act, 1956 was retrospective in operation. It was held that the provisions are not retrospective in operation and those applied only to the cases where the property belonged to a person, who died after the commencement of the said Act. It was further held that the said Act had no application to a situation where a male Hindu died before the commencement of the said Act.
19. In the present case, Chandrabhan died before coming into force of the said Act, and hence his mother Radhabai did not possess any vestige of title. Mere fact that Radhabai was in possession of the suit property along with Bhagirathibai, the widow of Chandrabhan, after 1952, was not sufficient to attract the provisions of Section 14 of the Hindu Succession Act. The Section is not intended to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser, as has been held by the Apex Court in Erammascase, cited supra. In the case of JamunabaiBhalchandra Bhoir and Ors. v. MoreshwarMukund Bhoir, reported in 2009(2) Bom.C.R. 278, the learned Single Judge of this Court has held that a mere right of maintenance without actual acquisition in any manner is not sufficient to attract Section 14(1) of the Hindu Succession Act, 1956. In view of both these decisions, the Appellate Court committed an error of law in holding that Radhabai became owner of half portion of the suit property by virtue of Section 14(1) of the Hindu Succession Act, 1956.
20. Now coming to the substantial question of law framed in these appeals, Tanabai was the sister of Chandrabhan. The position of Tanabai was in no manner different from the position of her mother Radhabai in a situation of the present case prevailing prior to coming into force of the Hindu Succession Act, 1956. She had no right or interest in the coparcenery property, which devolved upon Chandrabhan. Upon death of Chandrabhan, Bhagirathibai became the absolute owner of the suit property, and Tanabai, the sister of Chandrabhan, did not acquire any right in the estate of Chandrabhan. Both the Courts below have, therefore, committed an error of law in holding that Radhabai had a right in the estate left by Chandrabhan. Similarly, the Courts below have also committed an error of law in holding that Tanabai was having any share in the estate either by herself or through her mother Radhabai. The substantial question of law is, therefore, answered accordingly.
21. The necessary fallout of the answer to the substantial question of law is that Second Appeals Nos.291 of 1995 and 270 of 1995 succeed. The judgments and decrees passed in Regular Civil Suits Nos.279 of 1986 and 407 of 1986 by the learned Joint Civil Judge, Senior Division, Bhandara, on 31-12-1991, are hereby quashed and set aside along with the judgments and orders passed in Regular Civil Appeals Nos.26 of 1992 and 27 of 1992 by the learned IInd Additional District Judge, Bhandara, on 23-12-1994. Regular Civil Suit No.279 of 1986 is decreed in its entirety, holding that Smt. Bhagirathibai wd/o Chandrabhan became absolute owner of the suit property and the defendant Tanabai had no legal right over the suit property.
22. Both these second appeals are allowed in the aforesaid terms. No order as to costs.