Judgment:
P. Ray, J.
1. The present second appeal involves a dispute over the question of title and possession in A.C. 0.33 decimals of land of plot No. 150 within Holding No. 15of village Kunjam in Pallahara Sub-division, Dhenkanal which was within an erstwhile Princely State.
2. The plaintiff has claimed her title in the suit land on the basis that the suit property was the self-acquired property of her husband Dhaneswar. Her case is that on the death of Dhaneswar in the forties, she got a limited interest in the suit land and after enactment of Hindu Succession Act, 1956 her limited interest became absolute in accordance with Section 14 thereof. It appears that the plaintiffs name has also been duly recorded in the current record of rights. The plaintiff has stated that taking advantage of her helplessness the defendants, a brother of her husband, was trying to disturb her possession in the suit land and she had to start a proceeding under Section 145 of the Cr. P. C. In the said proceeding the suit lands have been kept under attachment by the Magistrate. In the said circumstances, she has filed the present suit for declaration of her title, confirmation of possession, injunction and other ancillary reliefs.
3. The defendant has denied the title of the plaintiff. The defence case is that the suit land is the self-acquired property of thedefendant. He has also pleaded an alternative case that the suit lands were joint family property and the plaintiff did not get any interest in the property on the death of Dhaneswar in the forties.
4. Both the Courts below have concurrently found that the suit land was the self-acquired property of the husband of the plaintiff, that the plaintiff acquired limited right on the death of her husband under the Hindu Women's Right to Property Act, 1937 and got possession of the same; that the said limited right matured into an absolute right with the enactment of the Hindu Succession Act, and that the plaintiff was in possession of the suit lands when those were attached by the Sub-divisional Magistrate.
5. On behalf of the defendant-appellant it has been urged that the Hindu Women's Right to Property Act was inapplicable to the area which was within a Princely State and outside the British India. It has been stated that the said Act of 1937 became applicable to the area only after the enactment of the Merged States (Laws) Act, 1950, and therefore, on the death of her husband the plaintiff did not get any right or interest in the property.
6. The contention that the Hindu Women's Right to Property Act, 1937 was inapplicable to the concerned area before 1950 appears to be correct. The Courts below have failed to take notice of the same and erred in proceeding upon the view that the plaintiff got a limited interest in terms of the provisions of the said Act of 1937.
7. But non-applicability of Hindu Women's Right to Property Act, 1937 to the area did not alter the position of the plaintiff at the time of her husband's death. Admittedly her husband died without leaving any son, grandson or great-grandson. Under the customary Hindu Law governing Mitakshara, succession a widow, in absence of a son, grandson or great-grandson, used to inherit a limited interest called widow's estate in the separate property of the husband. Hindu Women's Right to Property Act, 1937 entitled a widow to get a limited interest in equal share alongwith the son. Before enactment of the said Act of 1937 a widow did not get any interest in the property if the husband left any son, grandson or great-grandson.
8. Articles 35 and 43 in Mulla's Principles of Hindu Law make the position clear. In Article 35 at page 107 in the 15th Edition of Principles of Hindu Law by Mulla the position of law prior to the Hindu Women's Right to Property Act has been stated:--
'Under the law prior to the Act, the widow of a person governed by the Mitakshara had only a right of maintenance in respect of a coparcenary property in which the husband had interest. In respect of separate property left by her husband, she had only the right of maintenance when the husband had left a son, grandson or a great-grandson. She could inherit his separate property only in the absence of these immediate heirs.
9. Both the Courts below have concurrently held that the suit land was the self-acquired property of the plaintiff's husband. The said husband did not have any son, grandson or great-grandson at the time of his death. Thus, on the death of her husband the plaintiff acquired limited widow's estate in the suit lands. The plaintiffs continuous possession has been found by both the Courts below. When the Hindu Succession Act came into force, the plaintiff was in possession and her limited interest became absolute under Section 14 thereof. Non-applicability of Hindu Women's Right to Property Act is immaterial in the facts of the present case.
10. Mr. Mohanty on behalf of the appellant cited decisions reported in AIR 1950 Kutch 43 (Bhanbai v. Devji Dhana) and AIR 1944 Mad 340 (Umayal Achi v. Lakshmi Achi). In both the said decisions it has been held that the Hindu Women's Right to Property Act, 1937 was applicable only to British India. There cannot be any dispute regarding that position. But those decisions do not help the appellant any further. In AIR 1950 Kutch 43 (supra) it has been held that under the general principles of Hindu Law nephew was an heir preferential to a son's widow. In the present case the dispute is between the widowof the deceased and a brother of the deceased. As already pointed out, under the general principles of Hindu Law relating to Mitakshara Succession the widow was a preferential heir to a brother of the deceased. The said decisions are not at all relevant for the purpose of determination of widow's inheritance of limited right to the estate of her husband in absence of any son, grandson or great-grandson.
11. For the reasons aforesaid the appeal is dismissed. There is no order as to costs.