C.V. Rane, J.
1. This judgment will govern the disposal of Second Appeal's Nos. 666 and 667 of 1969 which arise out of Civil Appeals Nos. 32 of 1968 and 31 of 1968 respectively, decided by the learned District Judge, Banaskantha at Palanpur on June 16, 1969 and June 25, 1969 respectively.
2. Plaintiffs-respondents Nos. 1 and 2 hereinafter referred to as the plaintiffs and their deceased brother Koli Ishwar Kasala (respondent No. 3) had filed two suits being regular Civil Suits Nos. 32 of 1966 and 33 of 1966 in the Court of the Civil Judge, Junior Division, Deesa to obtain a declaration that the sale deeds executed by the deceased Ishwar Kasala in favour of the defendants on 2-4-1962 were null and void and also to recover possession of the suit fields from the defendants. During the pendency of the suits, Ishwar Kasala gave an application to the trial court to indicate that he wanted to withdraw the suits. The learned trial judge ordered that Ishwar Kasala should be transposed as defendant No. 2 in each of those suits, with the result that, there remained only respondents Nos. 1 and 2 as plaintiffs in each of the aforesaid suits. The plaintiffs are the daughters of Kasala Shamji. Civil suit No. 33 of 1966 was filed against Rabari Savdas Java. As he died during the pendency of the suit, his legal representatives were brought on record and they are appellants in second Appeal No. 667 of 1969. Civil suit No. 32 of 1967 was filed against Rabari Hamira Hengol who is the appellant in Civil Second Appeal No. 666 of 1969.
3. The facts of both the suits are, to a certain extent, similar. According to the plaintiffs, their father died in the year 1956. After the death of their father, their mother Bai Valma became the owner of the suit fields. Civil suit No. 32 of 1966 relates to the field bearing survey No. 245; whereas Civil Suit No. 33 of 1966 relates to the fields bearing survey Nos. 244 and 247. All the above fields are situated within the limits of Rajpur Jagir of Taluka Deesa in Banaskantha District. According to the plaint in each of the aforesaid suits, which was amended after the plaintiff-Ishwar Kasala was transposed as defendant No. 2, Ishwar Kasala had not executed any sale deed in favour of the defendant on 2.4.1962. Ishwar Kasala was treated by the defendants as a slave and if there is any sale deed, it was obtained from Ishwar Kasala by coercion and without paying him any consideration. The above sale deeds did not affect the interest of the plaintiffs' mother Bai Valma in the suit properties. As neither of the plaintiffs nor Bai Valma was a party to the above sale deeds, they were null and void.
4. According to defendant Hamira Hengol in suit No. 32 of 1966, the suit field bearing survey number 245 was of the ownership of Ishwar Kasala and as a result of the sale deed executed by him in his favour on 2.4.1962, he had become the absolute owner of the field in question. It was not true that after the death of the father of the plaintiffs in the year 1956, the plaintiffs' mother Bai Valma had become the owner of the suit field.' Kasala Shamji had mortagaged the suit field to Rabari Savdas who is the uterine brother of the defendant. At the time when Kasala Shamji died, it was defendant Hamira Hengol who was in possession of the suit field. Koli Kasala Shamji had executed a mortgage deed on 12-5-1953 in favour of Savda Java. Hamira Hengol continued to be in possession of the suit field from that date. It was also his contention that the sale deed in question was passed for proper consideration and it was binding to the plaintiffs and that the suit was barred by limitation.
5. According to Rabari Savdas, since deceased, after the death of the father of the plaintiffs, their brother Ishwar Kasala had become the absolute owner of the suit fields, bearing survey Nos. 244 and 247. Ishwar Kasala had mortagaged the suit fields bearing survey Nos. 244 and 247 with Savdas Java on 7.4.1956 and 25.5.1956 respectively. He was in possession of those fields from the dates of the mortagage deeds. He denied that the sale deed was obtained by coercion or that no consideration was paid for it. He also contended that the suit was barred by limitation.
6. The learned Civil Judge dismissed the suit. The appeals preferred by the plaintiffs were, however, allowed by the learned District Judge, Banaskantha and he passed a decree for joint possession in favour of the plaintiffs. Being aggrieved by the above decrees, the defendants have come in appeal to this court.
7. It was the case of the plaintiffs in each of the above suits that, their mother Bai Valma had become the absolute owner in respect of her one-half share in the suit fields by virtue of Section 14(1) of the Hindu Succession Act, 1956, hereinafter referred to as 1956 Act and that after the death of bai valma in the month of November 1961, each of the plaintiffs and their brother Ishwar Kasala inherited 1/3rd share in the properties of which Bai Valma had become the absolute owner by virtue of Section 14(1) of the 1956 Act. The above version of the plaintiffs was accepted by the learned District Judge. The contention of the defendants that the suits were barred by limitation was negatived by the learned District Judge. He also held that the sale deed executed by Ishwar Kasala on 2.4.1962 in favour of each of the defendants did not affect the shares of the plaintiffs in these fields, the contentions of the defendants that the appeals to the district court were barred by limitation were also rejected by the learned District Judge. In view of the above findings, the learned District Judge allowed the appeals and as observed above, decreed the suits in favour of the plaintiffs. The above questions are common to these appeals and hence, as observed above, they would be disposed of by a common judgment.
8. I shall first consider whether there is any substance in the submission of the learned advocate for the appellants that, the finding of the learned District Judge that the appeals were not barred by limitation, is erroneous. The trial court pronounced the judgment in each of the suits on 5th March 1968 and the plaintiffs applied for the certified copies of the judgments and decrees on the very day, i.e. 5th March 1968. The copies were ready for delivery on 12th March 1968 and the appellants filed the appeals in the district court on 15th April 1968. 14th April 1968 was a Sunday. The district court was closed on 14th April as well as on 12th and 13th April 1968 which were holidays and the appeals were filed on 15th April 1968 it was contended in the district court that there had been delay of one day in preferring the appeals and hence, hey were barred by limitation. The above contention is raised in this Court also. According to Section 12(2) of the Limitation Act, 1963.
(2) In computing the period of limitation for in appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
Sub-section (3) of Section 12 of the above Act provides-
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
It was argued in the district court that as the plaintiffs had applied for certified copies of the judgments and decrees on the same day on which the judgments were pronounced by the learned civil judge, only one day can be excluded in computing the period of limitation under Section 12(2) and (3) of the Act. The observations of the learned District Judge on the point are-
With profound respect to the Lahore High Court, and in view of the conflict of judicial decisions, I chose to follow the view expressed by the Nagpur High Court and the Himachal Pradesh as 'there was nothing fundamentally unjust or unreasonable in excluding the same day twice', and a court could not refuse to give effect to the plain meaning of the words used by the legislature if it did not conflict with reason and justice.
The learned District Judge took the view that according to the above provisions of the Act, two days should be excluded while computing the period of limitation and in that case, the appeals were within time. In support of the above view, the learned District Judge relied on the decisions in the cases of Balkrishna Rajaram Modi v. Baijnath Girdharilal Tiwari and Ors. A.I.R. 1939 Nagpur 150; and Sohan Lal and Anr. v. Sant Lal . In view of the above decisions, he did not rely on the decision of the Lahore High Court in the case of Ata Muhamad v. Pir Khan A.I.R. 1924 Lahore 599.
9. It is argued by the learned advocate for the appellants that, in view of the peculiar circumstances of the case referred to above, only one day can be excluded in computing the period of limitation for an appeal which it is not disputed, is 30 days from the date of the decree. On the basis of the provisions of Section 12(2) and (3) of the limitation Act, it is submitted by the learned advocate for the plaintiffs that, even if the applications for copies of the judgments and decrees were made on the same day on which the judgments were pronounced, two days should be excluded in computing the period of limitation. In the present case, the application for the copies of the judgments and decrees was made on 5th March 1968. Looking to the plain language of Sub-sections (2) and (3) of Section 12 of the limitation Act, it cannot be reasonably contended that, the day on which the application for a copy is made is not a day requisite for obtaining the copies and in that case, the total number of days beginning with the day on which the application was made for obtaining copies and ending on the day on which copies were made ready for delivery should be treated as 'the time requisite for obtaining copies of judgments and decrees' for the purpose of Section 12(2) and (3) of the Limitation Act. Thus, the time requisite for obtaining copies of judgments and decrees in the present case would be 8 days i.e. from 5th March 1968 to 12th March 1968 (both days inclusive). In view of the provisions of Section 12(2) of the Limitation Act, the day on which judgments were pronounced by the learned Civil Judge should be excluded in computing the period of limitation for an appeal and in the case, the last day for filing appeals would be 4th of April, 1968. If the time requisite for obtaining copies which, as observed above, comes to 8 days, is added to the period of 30 days calculated in the above manner, the last date for filing appeals would be 12th of April, 1968.
10. There is nothing in Sub-section (2) and (3) of Section 12 of the Act to indicate that if, an application for obtaining copies of judgment and or decree is made on the same day on which the judgment is pronounced, the day on which application for copies is made should be excluded while determining 'the time requisite for obtaining a copy of the judgment or the decree'. If it were the intention of the legislature that, in the circumstances mentioned above, the day on which an application for obtaining copies is made should not be treated as 'time requisite' for obtaining copies, a clear indication to that effect would have been given in Section 12 of the Act. The learned District Judge was therefore, right in taking the view that, even the 5th of March, 1968 should be taken into consideration for the purpose of determining the 'time requisite' for obtaining copies of the judgments and decrees and that the last day for filing appeal was 12th of April, 1968. As observed above, the courts were closed on 12th, 13th and 14th April 1968 and, therefore, the appeals which were filed on 15th April 1968 should be held to be within time. The above view is supported by the decision in the case of Balkrishna (supra). In the above case, there was a difference of opinion between the learned judges comprising the division bench as a result of which the matter was referred to a third judge, under the proviso to Sub-section (2) of Section 98 of the Code of Civil Procedure. The point of law upon which they differed was stated to be-
When an application for certified copies of judgment and decree is made on the day on which the judgment is pronounced, whether that day should not be counted as a day requisite for obtaining copies for the reason that it is otherwise excluded by law.
Agreeing with the view of the learned Chief Justice Stone, Niyogi, J. Held that, that day should be treated as a day requisite for obtaining copies. His observations on the point are-
It is evident that in computing the period of limitation prescribed for appeal, two periods are to be excluded; (i) the day on which the judgment is pronounced, and (ii) the time, i.e. The days requisite for obtaining copy of the decree. The first period is excluded by operation of law and the second by Act of the party. The first is unconditional and absolute, and the second is contingent on the making of an application for copies. The first is excluded whether such an application is made or not. It is clear that they are distinct and separate in their purpose. The day on which the judgment is pronounced would invariably be a fraction of a calendar day and the law ignores or eliminates that day absolutely so as to ensure to the party concerned as many complete days as are prescribed for any suit or appeal or application. Thus in the case of appeals, the appellant would have clear 90 days under Article 156. The copying time is excluded because the appellant is unable to appeal without filing a copy of the decree if not of the judgment. The necessity of filing the copy imposes on the appellant a disability which he works off by applying for it. The law therefore allows him to deduct the days lost in obtaining the copy from the prescribed period of limitation. It cannot be reasonably contended that the day on which the application for copy is made is not a day requisite for obtaining the copy. It is therefore evident that an appellant is entitled to a deduction of the number of days beginning with the day on which he applies for to the day on which he obtains the copy from the number of clear days of limitation prescribed by the statute. This conclusion is supported by the express wording of Section 12. It may be that in an exceptional case, such as the present one day happens to be excluded twice. However, startling, fantastic or absurd it may appear to be, the courts cannot refuse to give effect to the plain meaning of the words used by the legislature, if it does not conflict with reason and justice. As I have indicated above, there is nothing fundamentally unjust or unreasonable in excluding the same day twice.
11. 'A single Judge of the lahore High Court has taken a contrary view in the case of Ata Muhammad (supra). He does not seem to have interpreted Section 12 of the Act in an elaborate manner. In view of the clear decision of the division bench of the High Court of nagpur in the case of Balkrishna (supra) with which I respectfully agree, I am not inclined to follow the decision in the case of Ata Muhammad (supra). The decision of the full bench of the High Court of Bombay in the case of Jayashankar Mulsharikar and Anr. v. Mayabhai Lalbhai : AIR1952Bom122 cited by the learned advocate for the appellants is not relevant for the purpose of deciding the point raised in these appeals. Lam, therefore, of the view that the learned District Judge was quite justified in holding that the appeals were within the period of limitation.
12. In connection with the question of limitation, it may further be pointed out that while filing the appeals in the district court, the plaintiffs had given applications for condonation of delay, vide Ex. 7. The learned District Judge, while admitting the appeals, took the view that, they were not barred by limitation and hence, the above applications were not heard. It appears that when, the question of limitation was argued in the district court, the attention of the learned District Judge was not drawn to the above applications for condonation of law. It is submitted by the learned advocate for the appellants that, as no orders were passed on the above applications, it should be assumed that they were disposed of and hence the question of passing any orders on those applications at this stage does not arise. He has also submitted that if, any orders were passed on the above applications for condonation of delay, no appeals could have been preferred from those orders and hence, it is not open to this Court to pass any orders on those applications. In the present case, however, the above applications were not heard at all by the learned District Judge and this is the reason why no orders were passed thereon. Even according to the appellants, there was delay of one day in preferring the appeals in the district court and hence, it would be in the interest of justice to pass Appropriate orders in the above applications, even at this stage especially when, there is no legal bar to follow the above course. It would be open to this Court to pass suitable orders on the above applications in exercise of the powers conferred by Section 151 of the code of civil procedure. The plaintiffs have pointed out in the above applications that, they did not know that, the copies of the judgments were ready on 12th March, 1968. They have also pointed out that, they were under the impression that the appeals were within time. The learned advocate for the appellants has not advanced any argument on the merits of the above applications for condonation of delay. Looking to the contents of the above applications and the facts of the case, I am satisfied that, they had sufficient cause for not preferring the appeals within time and hence, it would be quite just and fair to condone the delay, if any, in preferring the appeals. The decision of the division bench of the High Court of Bombay in the case of Raichand Chunilal v. Rahi Nana Gade 40 B.L.R. 1211, supports my view that there is sufficient justification for condoning one day's delay, if any, in filing the appeals. In the above case, the learned single judge of the High Court of Bombay held that the appeal was out of time when it was filed in the district court against the decree made by the learned Subordinate Judge, Nasik. According to the learned District Judge, there had been delay of one day in preferring the appeal and the decision of the learned District Judge was confirmed by the learned Single Judge of the High Court of Bombay. In the Letters Patent Appeal, the Division Bench of the High Court took the view that-
We think that the case comes within the principle laid down in Murlidhar v. Motilal and the appeal was filed in time. But even supposing that it is not a correct view to take of this matter, this is preeminently a case in which the lower court ought to have excused the one day's delay.
The High Court had excused one day's delay even in the absence of any application for condonation of delay. In the present case, the plaintiffs had preferred applications for condonation of delay in the district court and as observed above, no orders have been passed thereon. Moreover, in the case of Raichand (supra), delay of one day was condoned even in the absence of any such application. Looking to the peculiar facts of the case, it cannot be denied that, this is a fit case in which delay of one any should be excused. At this stage, however, I should hasten to add that according to me, there was no delay in preferring the appeals.
13. As regards the merits of the case, the learned advocate fort he appellant has argued that the learned District Judge was not justified in taking the view that bai valma, the mother of the plaintiffs had become the absolute owner of her one half share in the suit fields in view of the provisions of Section 3(2) of the Hindu Women's Rights to Property Act, 1937, hereinafter referred to as 1937 Act, read with Section 14 of the 1956 Act. In order to appreciate the above submission, it is necessary to refer to certain facts of the suits. Kasala, the father of the plaintiffs and respondent No. 3 Ishwar, died before 7-4-1956, leaving behind him his widow Bai Valma and two daughters who are the plaintiffs and his son Ishwar, respondent No. 3. Bai Valma died in the year 1961. She was living with her son, respondent No. 3 till her death. After the death of Bai Valma, respondent No. 3 sold the suit fields to the appellants by two separate sale deeds, dated 2-4-1962. Now, it is the case of the plaintiffs that, by virtue of Section 3(2) of the 1937 Act, Bai Valma had one half share in the suit fields and that as a result of Section 14 of the 1956 Act which came into force on 17-6-1956. Bai Valma became the absolute owner of that one half share and hence, the sale deeds in question were not binding to Bai Valma's one half share in the suit fields. It was also their case that, according to Section 15 of the 1956 Act, the above properties of Bai Valma devolved on the plaintiffs and their brother-respondent No. 3 and that each of them had one third share in the above properties in view of Section 16 of the above Act.
14. Now Sub-sections (2) and (3) of Section 3 of the 1937 Act which are relevant for our purposes are in the following terms:
(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag 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.
It is not disputed that, in view of the above provisions of 1937 Act, Bai Valma acquired one half share in the suit fields. It is, however, argued by the learned advocate for the appellants that, as bai valma neither enforced any partition nor expressed a desire to effect, a partition, her interest in the Joint Family Property remained undefined as a result of which, it cannot be said that any part of the suit properties was possessed by her as contemplated by Section 14(1) of the 1956 Act, on the date on which that Act came into force. In this connection, it should be borne in mind that, the 1937 Act was passed to amend the Hindu Law to give better rights to women in respect of property. It is, therefore, necessary to construe its provisions in such a manner that object of the Act is achieved. It is obvious that, according to Section 3(2) and (3) of the 1937 Act, a widow governed by any school of Hindu Law other than Dayabhag school or by customary law became entitled to the same share as her husband had in the Joint Family Property and got the same right of claiming partition as a male owner. Looking to the plain language of Sub-sections (2) and (3) of Section 3 of the 1937 Act, there is no justification for taking the view that, the widow's interest on the Joint Family Property cannot be treated as the property possessed by a female Hindu for the purpose of application of Section 14(1) of the 1956 Act' as long as, she does not take any steps to enforce partition or expresses a desire to do so. The above Act was enacted in order to carry out the important social reform by giving better rights to women in respect of the property. The above object would be frustrated if Section 3(2) of the 1937 Act is construed in the manner suggested by the learned advocate for the appellants. It has been specifically provided in Sub-section (2) of Section 3 of the 1937 Act that, a widow shall, subject to the provisions of Sub-section (3), have in the joint family property, the same interest as her husband had. It is ridiculous to say that, the interest in the property is something different from the property and, that, the widows interest in the property can be treated as a property for the purpose of Section 14(1) of the 1956 Act only in case, she expresses a desire for partition or takes steps to enforce partition. The view to the contrary suggested by the learned advocate for the appellant would frustrate the very object of the Act which is ameliorative in character. There is nothing in Sub-section (2) of Section 3 which supports the view of the learned advocate. The only limitation that has been put in as regards the nature of her interest is that, as contemplated by Sub-section (3) of Section 3 she will have a limited interest known as Hindu Woman's Estate which has now been enlarged by Section 14 of the 1956 Act. It thus becomes evident that, the interest acquired by a Hindu Widow in. The joint family property under Section 3(2) of the 1937 Act is nothing but property for the purpose of application of Section 14(1) of the 1956 Act irrespective of the fact whether, she had expressed any desire to effect partition or taken any steps in that direction.
15. The above view is supported by the decision of the division bench of the High Court of Bombay in the case of Smt. Indubai W/o Pandhari Swadha Naik v. Vyanketi Vithoba Sawadha and Ors. : AIR1966Bom64 . The relevant observations on the point in the above case are-
As stated earlier 'possessed' as used in the section means the state of 'owning and having a disposing power.' This must mean a right in the property which is capable of enjoyment whenever the widow wills so to do. Having regard to decisions in (s) : AIR1956Ori73 and : AIR1955Bom152 she had ownership over her interest in the joint family property that she got on her husband's death without even claiming partition and if that is so, she must be regarded as being in possession of the property. It is not necessary, in our view, that she should reduce her share to possession either by Actual partition or even asking for partition. By reason of Section 14 of the Hindu Succession Act her limited estate became transformed into full estate with all its incidents including that of its passing to her heirs in accordance with Section 15 of the Act. It is not necessary for us to decide whether she could will away the property without demanding partition. In the present case, she had demanded partition and she would, therefore, be entitled to make valid bequest by will.
16. I shall now refer to the following authorities cited by the learned advocate for the appellants in support of his submission on the point. In the case of Polti Lakshmi Perumallu v. Potti Krishnavenamma : [1965]1SCR26 , the question raised in these appeals did not arise for consideration. As regards the widow's interest under Section 3(2) of the 1937 Act, it has been observed by the Supreme Court in the above case:
The various decisions to which we have adverted rest on the view that the interest which the law has conferred upon the widow is a new kind of interest though in character it is what is commonly known as the Hindu Widow's Estate. This interest is in substitution of her right under the pre-existing Hindu Law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to those decisions her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. In our opinion these decisions lay down the jaw correctly.
Further observations in the above case are-
Undoubtedly she does not become a coparcener, though her interest in the family property is to be the same as that of her deceased husband except that in extent it is to be that of a Hindu widow, (now of course, it has been enlarged by Section 14 of the Hindu Succession Act, 1956). But a coparcener has no defined interest in the joint family property and the right which he has to claim for partition. The quantum of his interest would be determinable with reference to the date on which such member unequivocally declares his intention to separate and thus put an end to the coparcenary. It cannot even be suggested that the event of the death of a coparcener is not tantamount to an unequivocal declaration by him to separate from the family. According to the theory underlying the Hindu Law the widow of a deceased Hindu is his surviving half and therefore as long as she is alive he must be deemed to continue to exist in her person. This surviving half had under the Hindu Law texts no right to claim a partition of the property of the family to which her husband belonged. But the Act of 1937 has conferred that right upon her. When the Act says that she will have the same right as her husband had it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the date on which she claimed partition.
As observed above, the question whether the interest of a Hindu widow in the joint family property under Section 3(2) of the 1937 Act was a property within the meaning of Section 14(1) of the 1956 Act did not come up for consideration in the above case the facts of which were entirely different from those of the present one before me and hence it cannot be said that the above observations support the argument of the learned advocate for the appellants. In the case of Satrughan Isser v. Sabuipari and Ors. : [1967]1SCR7 it has been observed-
The interest which a widow acquires under Section 3(2) of Act 18 of 1937 has no analogy with the interest which a female member of a Hindu joint family acquires in the property of the joint family allotted to her on partition between her sons or grand sons. It is true, as observed in Pratapmull Agarwalla v. Dhanbati Bibi that under mitakshara law when the family estate in a Hindu joint family is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the division of the property is Actually made, as she has no pre-existing rights in the estate save a right of maintenance. If she dies before the property is divided, her share in the property falls back into the property from which it was carved out. But a Hindu widow acquires under Section 3(2), even before division of the property, an interest in property and that interest gets defined as soon as an unequivocal demand for partition is made by her.
Even in the above case, which arose out of the suit filed before 1956 Act came into force, the question whether the interest acquired by a Hindu widow under Section 3(2) of the 1937 Act was a property possessed by a female Hindu within the means of Section 14(1) of the 1956 Act, did not come up for consideration. It, however, becomes evident from the above observations that, a Hindu widow acquires a positive interest in the property even before partition and that, a partition is necessary only for the purpose of defining that interest. There is nothing in the aforesaid decisions to suggest that, as long as the interest of a Hindu widow in property is not defined by making a demand for partition, it is not capable of being enlarged into an absolute estate or property, under Section 14 of the 1956 Act. The above observations which relate to interpretation of Section 3(2) of the 1937 Act are required to be read in the context of the facts of the case and the points of law specifically raised therein. I, therefore, feel that the above decision is not relevant for the purpose of deciding the point at issue in these appeals. There is nothing in the case of D.P. Rai Ahujav Rameshwar Lal and Ors. which also refers to the interpretation of Section 3(2) of the 1937 Act which supports the above argument of learned advocate for the appellants.
17. I have already pointed out that my view on the point is supported by the decision of the Division Bench of the Bombay High Court in the case of Smt. Indubai (supra) I shall now refer to certain authorities cited by the learned advocate for the plaintiffs which also support the above view.
18.In the case of R.B.S.S. Munnalal and Ors. v. S.S. Rajkumar and Ors. : AIR1962SC1493 , the Supreme Court has observed-
By Section 14(1) the legislature sought to convert the interest of a Hindu female which under the sastric Hindu Law would have been regarded as a limited interest into an absolute interest and by the explanation thereto gave to the expression 'property' the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription or in any other manner whatsoever. By Section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the sastric Hindu law may be into absolute estate. Pratapmull's case undoubtedly laid down that till Actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu succession Act. The Act is a codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the sastric Hindu law, the where given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the legislature by enacting the Hindu Women's Right to Property Act, 1937 made a significant departure in that branch of the law the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severally of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death Actual or civil. It cannot be assumed having regard to this development that in enacting Section 14 of the Hindu Succession Act the legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull's case Section 4 of the Act gives an overriding effect 'to the provisions of the Act. It enacts: 'save as otherwise expressly provided in this Act-
(a) any text, rule or interpretation of Hindu law or any custom or usage as art of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:
(b) ....
Manifestly, the legislature intended to supersede the rules of Hindu Law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which Section 14 occurs or in the phraseology used by the legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of Section 14.
In the light of the scheme of the Act and is avowed purpose it would be difficult without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the Learned Counsel for Rajkumar that it was not property within the meaning of Section 14 of the Act.
While explaining the scope of Section 14(1) of the 1956 Act, it has been observed by the Supreme Court in the case of Mangal Singh and Ors. v. Smt. Rattno A.I.R. 1967 S.C. 1786:
It is significant that the legislature begins Section 14(1) with the words 'any property possessed by a female Hindu' and not 'any properly in possession of a female Hindu.' If the expression used had been 'in possession of instead of 'possessed by', the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in Actual possession of the female Hindu or in her constructive possession. The constructive possession may be through a lessee, mortgagee, licensee, etc. The use of the expression 'possessed by' instead of the expression 'in possession of in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, & or the time being, be out of Actual possession or even constructive possession. The expression 'possessed by' is quite frequently used in testamentary documents, where the method of expressing the property, which is to pass to the legatee, often adopted is to say that 'all property dispossessed (sic) of shall pass to' In such documents, wills, etc. Where this language is used, it is clear that whatever rights the testator had in the property would pass to the legatee, even though, at the time when the will is executed or; when the will becomes effective, the testator might not be in Actual, physical or constructive possession of it. The legatee will, in such a case, succeed to the right to recover possession of that property in the same manner in which the testator could have done. Stroud in his judicial dictionary of words and phrases, Vol. 3, at p. 2238, has brought out this aspect when defining the scope of the words 'possess' and 'possessed'. When dealing with the meaning of the word 'possession' stroud defines 'possession', as being in two ways, either Actual possession or possession in law. He goes on to say that 'Actual possession is when a man enters in deed into lands or tenements to him descended or, otherwise. Possession in law is when lands or tenements are descended to a man, and he has not as yet really, Actually, and in deed, entered into them.' In Wharton's Law lexicon, 14th Edn. At p. 777, the word 'possession' is defined as being equivalent to 'the state of owning or having a thing in one's own hands or power'. Thus, three different meanings are given; one is the state of owning, the second is having a thing in one's own hands, and the third is having a thing in one's own power. In case where property is in Actual physical possession, obviously it would be in one's own hands, if it is in constructive possession, it would be in one's own power. Then, there is the third case where there may not be Actual, physical or constructive possession and yet the person still possesses the right to recover Actual physical possession or constructive possession; that would be a case covered by the expression 'the state of owning'.
In fact, elaborating further the meaning of the word 'possession', wharton goes on to say that it is either Actual, where a person enters into lands or tenements descended or conveyed to him; apparent, which is a species of presumptive title where land descended to the heir of an abater, intruder, or disseisor, who died seized; in law, when lands, etc. Have descended to a man, and he has not Actually entered into them; or naked that is mere possession, without colour of right'.
It appears to us that the expression used in Section 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not Actually entered into them. It would, of course, cover the other cases of Actual or constructive possession. On the language of Section 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in Actual, physical or constructive possession of that property...it appears to us that the relevant date, on which the female Hindu should be possessed of the property in dispute, must be the date on which the question of applying the provisions of Section 14(1) arises. If, on that date, when the provisions of this section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death.
Thus, looking to the plain language of Section 3 of 1937 Act and Section 14 of the 1956 Act and the authorities referred to above, it is not correct to say that, the widow's interest in the joint family property gets crystalised into 'property' only on exercising her right of claiming partition under Section 3(3) of the 1937 Act.
19. The learned District Judge has held that Bai Valma being in possession of the properties in question on the date on which 1956 Act came into force, she had become the absolute owner of these properties. It is, however, argued by the learned advocate for the appellants that, on the date on which 1956 Act came into force, Bai Valma was not in possession of the suit properties either Actual or constructive, and hence, it cannot be said that, she had become the absolute owner of the properties in question under Section 14(1) of the Act. I have already pointed out that, hamira hengol who is defendant in Civil Suit No. 32 of 1966 is uterine brother of savdas who is defendant No. 1 in Civil Suit No. 33 of 1966 and that deceased Ishwar Kasala had executed one of the sale deeds in favour of Hamira Hengol and the other in favour of Savdas Java. Now, Hamira has stated in his written statement that the father of the plaintiffs namely Kasala Shamji had mortgaged the suit fields No. 245 to which Civil Suit No. 32 of 1966 relates to Savdas Java, by a mortgage deed executed on 12-5-1953 and that since that date, he was in possession of that field. According to him, the mortgage deed was only in favour of Savdas Java. According to the written statement of savdas in Civil Suit No. 33 of 1966, ishwar kasala had mortgaged the fields bearing Nos. 244 and 247 which were the subject matter of the above suit with him. The mortgage deed in respect of the field bearing No. 247 was executed on 7-4-1956 whereas that in respect of survey No. 244 was executed on 25-5-1956. Thus, according to both the defendants, they were in possession of the suit fields as mortgagees. The mortgage deeds were produced by the defendants in the trial Court. As they are not registered, they were taken into consideration only for the purpose of ascertaining the nature of possession of the defendants. It is needless to add that, the contents of the mortgage deeds in question cannot be looked into for any other purpose. In view of the above contention of the defendants that they were in possession of the suit fields as mortgages, it should be held that, bai valma was in constructive possession of her interest or share in the suit fields on the date on which 1956 Act case into force and that she continued to be in such possession till her death in the year 1961. This shows that, the requirements of Section 14(1) of the 1956 Act as regards possession are satisfied in each of these two cases. It is submitted by the learned advocate for the appellants that no mortgage deed is alleged to have been executed in favour of hamira hengol, defendant No. 1 in Civil Suit No 32 of 1966 and hence, it cannot be said that, he is in possession of the suit field as a mortgagee. Hamira hengol has, however, made a categorical statement in his written statement that, he was in possession of the suit field as a mortgagee. Under these circumstances, the above submission of the learned advocate for the appellants to the contrary cannot be accepted. Even if it is assumed for the sake of argument that, hamira hengol was in possession of the suit field as a trespasser, that circumstance does not come in the way of bai valma becoming the absolute owner of the suit field by virtue of Section 14(1) of the 1956 Act. In this connection, it is pertinent to note that, it was never the case of hamira hengol that he was in adverse possession of the suit field. This shows that bai valma was competent to recover possession of her field or at least of her share in the above field on the date on which 1956 Act came into force or at any time before her death. It is not disputed that, the property in the wrongful occupation of a trespasser is deemed to be possessed by a Hindu female within the meaning of Section 14 of the 1956 Act. If any authority is needed on the point, it is provided by the decision in the case of Yamunabai W/o. Harihar Pandit and Anr. v. Raw Maharaj Shreedhar Maharaj Pandit and Anr. A.I.R. 1960 Bombay 463, in which it is observed-
The possession contemplated by Section 14 is legal possession, and property in the wrongful occupation of a trespasser either directly or through his tenants is none the less possessed by a Hindu female within the meaning of Section 14.
Thus, considering from all points of view, it becomes evident that bai valma had become the absolute owner of her one-half share in the suit fields, under Section 14(1) of the 1956 Act.
20. The next contention raised by the learned advocate for the appellants is that, the learned District Judge was not justified in taking the view that the suits were not barred by limitation. According to the learned advocate, the plaintiffs seek to obtain a declaration that, the sale deeds were null and void. The sale deeds have been executed by Ishwar Kasala on 2.4.1962 and in that case, the suits would be governed by Article 59 of the limitation Act, 1963 which reads as under:
Description of suit. Period of limitation. Date from which period begins
to run
---------------------------------------------------------------------------
'To cancel or set Three years. When the facts entitling the
Aside an instrument plaintiff to have the instrument
Or decree or for ment or decree cancelled or
The rescission of a set aside or the contract res.
contract, cinded first become
known to him'.
It was the case of the plaintiffs in each of the aforesaid suits that they came to know of the sale deeds in question only in the year 1965 when the Talati of deesa served them with a notice dated 23.10.1965 in connection with the mutation of the suit fields and as the suits were filed in the year 1966, they were within limitation. The above version has been accepted by the learned District Judge. I have no reason to disagree with the learned District Judge on the above point. Moreover, his finding being a finding of fact cannot be interfered within these second appeals.
21. The learned District Judge has also held that as it was not necessary for the plaintiffs to set aside the sale deeds, Article 59 of the limitation Act would not be attracted and as the plaintiffs had filed the suits within 12 years from the date of the sale deeds, or before the defendants had acquired any title to the suit fields, by adverse possession for more than 12 years, the suits were within time. The plaintiffs have alleged in the plaints in very clear terms that, the sale deeds having been executed only by Ishwar Kasala, they were not binding to them and they were null and void. It is true that in the alternative, they have prayed that even if, the aforesaid sale deeds are held to be voidable, they should be cancelled. In spite of the above prayer, it is found that, their suits are mainly suits for possession and the other reliefs seem to have been sought only incidentally. It should be borne in mind that the plaints have been drafted by a lawyer practising in the courts in the mofussil and hence, they cannot be construed in a strict manner. It is not disputed that, neither of the plaintiffs is a party to the sale deeds and hence, it was not necessary for them to get the sale deeds cancelled.
22. In this connection, it should be remembered that, the sale deeds were executed by Ishwar Kasala only after the death of his mother and as observed above, his mother Bai Valma had become the absolute owner of her one-half share in the suit fields. Under these circumstances, it is obvious that the sale deeds would not affect her share in the suit fields.' moreover, the plaintiffs seek to establish the right to the suit fields not through their brother Ishwar Kasala but they claim the above right as legal heirs of their mother. Under these circumstances, they are in a position to secure the relief of possession even if, the sale deeds are not set aside. This shows that the suits are mainly Actions for recovering possession of the suit fields from the defendants and in that case, the suits can be filed within 12 years of the date of the sale deeds. If any authorities are needed on the point, they are provided by the decisions in the case of Manchharam Pranjivandaa and Anr. v. Panubhai Lallubhai and Ors. A.I.R. 1915 Bom. 242 and Abdullakhan Daryakhan v. Purshottam Damodar A.I.R. 1948 Bombay 265. I have already pointed out that, even according to the admissions of the defendants, they were in possession of the suit fields as mortgagees and it is not their contention that, their possession had become adverse to the plaintiffs or their mother before the sale deeds were executed. In this connection, it is pertinent to note that, till the year 1966, the land assessment has been paid by one defendant or the other in the name of the father of the plaintiffs, vide Exs. 97 to 104. Possession of the defendants can be said to have become adverse only since the date of the sale deeds which is 2.4.1962. Now, according to the Article 65 of the limitation Act, suits for possession of immovable property or any interest therein based on title can be filed within 12 years from the date on which possession of the defendants becomes adverse to the plaintiffs. The present suits have been filed on 7.7.1966. The learned District Judge was, therefore, right in taking the view that Section 59 of the limitation Act was not applicable to the suits and the suits having been filed within 12 years of the date of the sale deeds were within time.
23. It is further argued by the learned advocate for the appellants that, the 1937 Act is not applicable to the suit fields. After the decision of the federal court in the matter of the Hindu Women's Right to Property Act, 45, Calcutta weekly notes 81, that the 1937 Act did not operate to regulate succession to agricultural lands in the governors' provinces, some of the provinces extended operation of the above Act to regulate succession to agricultural lands by passing suitable legislation. So far as the province of Bombay was concerned, the governor of Bombay made the Bombay Hindu women's rights to property (extension to agricultural land) Act, 1942 (Bombay Act No. XVII of 1942), according to Section 2 of which, the term 'property' in the 1937 Act 'shall include and shall be deemed always to have included agricultural lands'. The Bombay Act No. XVII of 1942 has been replaced by the Bombay Hindu Women's Right to Property (Extension to Agricultural Land) Act, 1947 (Bombay Act No. XIX of 1947) Section 3 of which reads as under:
The term 'property' in the Hindu Women's Rights to Properly Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938, as in force in the province of Bombay, shall include, and shall be deemed always to have included, agricultural land:
Provided that nothing in this Act shall affect any rule of succession prescribed for tenants' rights in agricultural land by any special law for the time being in force.
In view of the above Bombay Acts, it becomes evident that the 1937 Act applies even to agricultural lands in the State of Bombay. According to the learned advocate for the appellants, the suit fields formed part of the territory of the erstwhile palanpur state. As a result of re-organisation of states, the above territory became a part of the state of Bombay.
It is not disputed that by virtue of the Indian States (Application of Laws) Order, 1948 made by the then Government of Bombay, the 1937 Act was made applicable to the palanpur state in the year 1948. According to paragraph 3(1) of the above order-
All enactment specified in parts I and II, of schedule ii and all notifications, orders, schedules, rules and bye-laws issued, made or prescribed under such enactments and in force in the province of Bombay immediately before the coming into force of this order, shall extend to and be in force in the Indian states subject to any amendments to which the said enactments are for the time being generally subject in the province of Bombay.
According to the learned advocate for the appellants, the Bombay Act No. XIX of 1947 is not included in any of the schedules to the above order and hence, it cannot be said that, that Act applies to the agricultural lands now, according to Section 3 of the Bombay Act No. XIX of 1947 the term 'property' in the Hindu Women's Rights to Property Act, 1937, shall include and shall be deemed always to have included agricultural lands. The effect of this Act is that 1937 Act stood modified to the above extent so far as the province of Bombay was concerned. Now, according to paragraph 3 of the Indian states (application of laws) order, 1948, 'all enactments specified in parts i and ii of schedule ii and all notifications, orders, schedules, rules and bye-laws issued, made or prescribed under such enactments and in force in the province of Bombay immediately before the coming into force of this order, shall extend to and be in force in the Indian states subject to any amendments to which the said enactments are for the time being generally subject in the province of Bombay. It cannot be disputed that, before the date of the above order, the 1937 Act as modified by the Bombay Act No. XIX of 1947 was in force in the province of Bombay. Under these circumstances, in view of paragraph (3) of the Indian states (application of laws) order, 1948, it should be held that, the 1937 Act as modified by the Bombay Act No. XIX of 1947 was made applicable to the palanpur state in the territory of which, the I suit fields were situate. This shows that the provisions of the 1937 Act are applicable to the suit lands. It thus becomes evident that there is no substance whatsoever in the above contention of the learned advocate for the appellants.
24. It is further submitted by the learned advocate for the appellants that, the decretal order passed by the learned District Judge awarding joint possession to the plaintiffs is not according to law. According to him, the proper remedy for the plaintiffs was to file a suit for partition and they are not entitled to claim joint possession in these suits. The learned advocate for the appellants is not consistent in his submission on the point. At one stage, while challenging the plaintiffs' claim that, their mother bai valma had become the absolute owner of the suit fields under Section 14 of the 1956 Act, he pleaded that, the defendants were in possession of the suit fields as trespassers when the above Act came into force. He, however, took quite a different stand while challenging the decretal order and submitted that, the defendants were in possession of the suit fields as mortgagees, before the above sale deeds were executed. Now, according to the unregistered mortgage deeds produced in the trial court, the mortgages were created in favour of meva savdas who is the son of the defendant Savdas Java in Civil Suit No. 33 of 1966. In some of the entries in the record of rights, Savdas Java is shown as a mortgagee in respect of some of the fields. None of the entries on the point is however, property certified by the authorities concerned. Moreover, the defendants themselves have come out with a case in the trial court that, it was meva savdas who was a mortgagee. In order to get over the above difficulty, the learned advocate for the appellants came out with an ingenious submission that, the mortgage in favour of meva savdas might have been satisfied and a new mortgage might have been created in favour of savdas. In the absence of any registered mortgage deeds, the above submission cannot be accepted for a moment.
25. Now, according to para 12 of each of the written statements filed by the defendants, the amount due under the mortgage deed was also a part of consideration for the sale deeds executed by Ishwar Kasala. This shows that, according to the defendants, the mortgage deeds were satisfied at the time when, the sale deed in question were executed by Ishwar Kasala. It was deceased Savdas Java who had filed one of the aforesaid written statements in Civil Suit No. 33 of 1966. When meva savdas and other legal representatives of Savdas Java were brought on record during the pendency of the suit, they gave a purshis that, they did not want to file any further written statement. This shows that, the written statement filed by Savdas Java was adopted by them. Under these circumstances, it would not be open to meva savdas to say that, he continued to be in possession of the suit fields under the original mortgage deeds which, as observed above, cannot be looked into except for the purpose of determining the nature of possession. It should further be remembered that, Ishwar Kasala has stated in clear terms in each of the above sale deed that the suit lands had not been mortgaged to any one. It is thus found that, whatever may be the nature of possession of the defendants before the date of the sale deeds, they cannot be said to be in possession of the suit fields as mortgagees after 2.4.1962 on which date the above sale deeds were executed.
26. It is further surprising to find that, the learned advocate for the appellants has also raised a contention that the defendants were in possession of the suit fields as tenants and hence, in view of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, the Civil Court had no jurisdiction to pass a decree for possession. No such plea was raised in any of the courts below and it is not the case even of the defendants as disclosed from their written statements that, they at any time claimed to be in possession of the suit fields as tenants under the above Act. According to the unregistered mortgage deeds produced by the defendants in the trial Court, neither of them was as a mortgagee in respect of any of the suit fields. Even if it assumed that, before the sale deeds were executed they were in possession of the suit fields as mortgagees, they cannot be considered to be tenants in view of Section 4-c read with Section 89(2)(b)(1) of the Bombay tenancy and agricultural lands Act, 1948. Relying on the decision of the Supreme Court in the case of S.N. Kamble v. The Sholapur Borough Municipality and Anr. : [1966]1SCR618 , I have taken the view to the above effect in second Appeal No. 186 of 1971 with Civil Application No. 1229 of 1971 decided on 11/14-7-1975. Patel Ambalal Manilal v. Jagdishchandra Desai. Relying on the full bench decision of this Court in the case of Patel Gordhanbhai Vaghjibhai and Anr. v. Vaghri Ranchhodbhai Satntabhai and Ors. 1 G.L.R. 311, I have also held in the above case that, the Civil Court has jurisdiction to decide a question whether, the Bombay Tenancy and Agricultural Lands Act applies to a particular land or case.
27. As observed above, Bai Valma having become, the absolute owner of her one-half share in the suit fields under Section 14 of the 1956 Act, the sale deeds executed by Ishwar Kasala are not binding so far as Bai Valma's share is concerned. Now, according to Sections 15 and 16 of the 1956 Act, Bai Valma's interest in the suit fields would devolve on the plaintiffs and their deceased brother Ishwar Kasnla and in that case, there cannot be any objection in passing a decree for joint possession in favour of the plaintiffs. While passing the decree for joint possession, the learned District Judge has relied on the decisions of the High Court of Bombay in the cases of Dugappa Shetiv Venkatramnava I.L.R. 5 Bombay 493 and Naranbhai Vaghjibhai v. Ranchhod Premchand and Anr. I.L.R. 26 Bom. 141 which are the authorities on the point. I, therefore, hold that, the learned District Judge was quite justified in passing decrees for joint possession. The finding of the learned District Judge determining the shares of the plaintiffs in the suit fields is not challenged before me. Considering all these circumstances, it becomes evident that, there is no substance in these appeals and they are liable to fail. In the result, the appeals are dismissed with costs.