C.B. Bhagava, J.
1. This is a plaintiff's appeal against the judgment and decree dated 18th December, 1965, of the District Judge, Alwar.
2. The plaintiffs are the sons of Umrao Singh who died on 16th, April, 1962, leaving behind properties which are mentioned at items Nos. 1 to 11 of Schedule 'Ka' annexed to the plaint. Before his death, Umrao Singh by his will dated 10th May, 1961, bequeathed these properties in favour of Mst. Patashi his wife. The defendants in the suit are Mst. Patashi, the stepmother of the plaintiffs, Prem Narain and Durgaprasad the other two sons of Umrao Singh, and Mst. Ratti Devi, Anguri Devi, Maya Devi and Shanti Devi, daughters of Umrao Singh. Plaintiff's case is that until 10th September, 1961, Umrao Singh and his sons constituted an undivided Hindu family. On 10th September, 1961, the plaintiffs served a notice upon Umrao Singh of their intention to separate and demanded a partition of the properties. However, Umrao Singh died on the 16th April, 1962, without effecting partition of the properties. Plaintiff's case is that the disputed properties were jointly acquired by them and the deceased Umrao Singh and the plaintiffs are entitled to 20/45 the share in each property. A declaration has been further sought that the will executed by Umrao Singh in favour of Mst. Patasshi is illegal and void because none of the properties was his self-acquired property. They have also sought an injunction restraining Mst. Patashi from disposing of the family property.
3. Mst. Patashi contested the suit and stated that partition had already been effected between the plaintiffs and Umrao Singh before the execution of the will. It was also stated that the properties mentioned in the will were the self-acquired properties of Umrao Singh and he had a right to bequeath them to her.
4. The lower court framed the following issues on the pleading of the parties:
1- D;k tk;nkn iSnk dnkZ vtukek mejko flag fgUnw [kkunku eq'rdh tk;nkn gS o dkfCkys rdlhe gS
2- D;k eqnk;yk ua01 fgUnw [kkunku dh tk;nkn eudqyk oks xSj eudwyk dks Qjks[r djus dh ps'Vk es gS] ftlls eqn~nb;ku gqDe bErkukbZnokeh ikus ds eqLrd gS
3- D;k olh;rukek rk0 10&3&61 cgd eqnk;yk ua01 Jh mejko flag ds vukf/kdkj o vuqfpr :Ik es fd;k gS ] ftldh eUlq[kh ds eqnb;ku eqLrd gS
4- D;k eqnb;ku tk;nkn eqUntkZ QsgfjLRk ua0 d ykxker o rdlhe djkus ds eqLr;d gS
5- nknjlh
In support of these issues, the plaintiffs gave their own statements as P.W. 10 and 11 and also examined Biharilal P.W. 2, Jagan Prasad P.W. 3, Vishamber Prasad P.W. 4, Onkarnath P.W. 5, Prabhudayal P.W. 6, Prashadilal P.W. 7, Ghudiram P.W. 8 and Mahesh Chandra P.W. 9. In rebuttal Mst. Patshi gave her statement as D.W. 1 and examined Harnarain D.W. 2, Mamraj D.W. 3, Rampratap D.W. 4 and Ganeshilal D.W. 5. Plaintiffs also produced receipts issued by the Mining Department Exs. 1 to 5. On behalf of the defendants, copy of the will, copies of Khasra of Smt. 2018, 2019 and 2020 and sale-certificate were also produced. The documents Exs. 1 to 5 are rot traceable on the record, but learned Counsel for the appellants is in possession of the certified copies of these documents and he has placed them before the court for its perusal.
5. The learned District Judge on a consideration of the evidence came to the finding that properties mentioned at items Nos. 1, 2, 4, 5, and 6 were the self-acquired properties of Umrao Singh and they had been rightly bequeathed to Mst. Patashi under the will which is valid to that extent He further held that property at item No. 3 of Schedule 'Ka' was the joint family property and Umrao Singh had no right to will away that property to his wile. The learned Judge further held that the properties mentioned at items Nos. 3, 7, 8, 9, 10 and 11 were the joint family properties and libale to partition. He accordingly passsd a preliminary decree for partition of items Nos. 3, 7, 8, 9, 10 land 11 of Schedule 'Ka'. and declared the sheres of the parties as below:
1. Plaintiff Banwarilal 5/272. Plaintiff Vishun Avtar 5/273. Defendant No. 1 Mst. Patashi 5/274. Defendant 2 Premnarain 5/275. Defendant 3 Durga Prasad 5/276. Defendant 5 Mst. Ratidevi 1/547. Defendant 5 Mst. Angooridevi 1/548. Defendant 6 Mst. Mayadevi 1/549. Defendant 7 Mst. Santi Devi 1/54
6. In this appeal, learned Counsel contends that the lower court has erroneously held properties Nos. 1, 2, 4, 5 and 6 as the self-acquired properties of Umraosingh. In this contended that the said properties were the joint acquisition of the plaintiffs & their father Umraosingh. In this connection it is pointed out that !?' the plaintiffs were also carrying on mining business in the life-time of Umraosingh and had made contribution out of those earnings for the acquisition of the aforesaid properties. It was also contended that Umraosingh was only a Patwari drawing a salary of Rs. 11 p.m. and he had no other source of; income so as to acquire the aforesaid properties and in such circumstances it I should be presumed that the aforesaid properties were the joint family properties. Reliance is placed on Haridas v. Devkuvarbai AIR 1926 Bom. 408 where it was held that the property acquired jointly by father and son living together becomes joint family property even in the absence of family nucleus for its acquisition, and on Bhagwat Kishore v. Bishambhar Nath : AIR1950All54 where the court held that:
Where a purchase is made by the Karta or the manager of the joint Hindu family and it is proved that he was in receipt of an income on behalf of the joint Hindu family, and it is not proved that he had any separate source of income, the presumption to be made is that the purchase was made by the karta on behalf of the family from family funds, unless the contrary is proved. When no other source of income is disclosed from which the property could be purchased and all that is known is that the family possessed some ancestral uncleus, the presumption to be made is that the nucleus was sufficient to enable the purchase of the property to be made. The nature of the property so purchased is joint family property.
7. The question, therefore to be determined is whether the properties Nos. 1, 2, 4, and 6 were acquired with the aid of some ancestral nucleus or were acquired jointly by the father and the sons. The law regarding the burden of proof of the existence of joint family property was laid down in Appalaswami v. Suryanarayanamurti AIR 1947 P.C. 189 and was thus stated:
The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the uncleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
These observations were quoted with approval in Shrinivss v. Narayan : [1955]1SCR1 .
8. In M. Nagendriah v. M. Ramachandraiah 1969 UJ (SC) 697, the Supreme Court held that:
It is not denied that all these properties were purchased in the name Ramachandraiah. Now if that is so, then the onus of proving that these purchases were benami was on the appellant and it was form him to show by convincing evidence that the source of money for these acquisitions was traceable to the joint funds from the business. We are not unmindful of the fact that in this country benami transactions ate not uncommon and they are certainly not forwarded upon. We are equally conscious of the fact that the appellant and respondent Ramchandraiah are real brothers and not utter strangers. But at the same time onus must as a matter of law be on the party asserting benami nature of title. The amount and nature of evidence required to discharge the onus would of course depend upon the facts & circumstances of each case. In the case in hand the evidence to which our attention has been drawn does not seen to be strong enough to displace the con current conclusions of the courts below that the appellant in not joint owner of the properties in dispute along with the respondent.
9. If the present case, it is admitted by Banwarilal plaintiff that his grandfather had left only one house in which his uncle had also a share. Besides that house, no other property had been left by the grandfather. Harnarain D.W. 2 who is the younger brother of Umrao Singh and the uncle of the plaintiffs has also stated that the financial condition of his father was not good. He has also stated that his father had left only one house. He has also admitted that the house in which Mst. Patashi was living at the time the witness gave his evidence had been built on the land f which has been left by his father There is no evidence, worth the name, that the house and the land left by the plaintiffs' grand-father was yielding any income which could have formed a nucleus for the acquisition of the properties Nos. 1, 2, 4, 5 and 6. There is no evidence that that besides the above-mentioned immovable properties, plaintiffs' grandfather had left any cash. It is, therefore, to be seen whether these properties were acquired jointly by the plaintiffs and their father Umraosingh. Plaintiffs own statements and their witnesses do not throw any light on this question.
10. Banwarilal made a general statement that the disputed properties were acquired by the joint earnings of all the members. He has stated that he took the mining leases in his own name and that of his brother Vishnu Awtar, and its account was kept by his father. He admitted that his father was also doing money-lending business. He also admitted that he started maintaining a separate mess 5 or 6 years after his father's marriage with his step mother. Vishnu Awtar the second plaintiff was unable to say when was the agricultural land, that is, item No. 6 was purchased. He admitted that item No. 5 of Schedule 'Ka' was purchased by his father at court-auction. Thus the plaintiffs did not say as to when the properties mentioned at item Nos. 1, 2, 4, 5 and 6 were acquired and for what consideration and what was their own contribution. The accounts relating to the mining business have not been produced to show if any profit accrued from it and whether any money was taken out of the profits for the acquisition of the disputed properties.
11. P.W. 1 Bihari Lal has simply deposed that all the four sons of Umrao Singh were living jointly. Saraswati Narain P.W. 2 has deposed that Banwarilal since the age of 20 years became an earning member and he used to give his earnings to Umrao Singh. Jagan Prasad PW. 3 simply stated tha} Banwarilal since the age of 15 or 16 years became an earning member and that he was doing the work of cultivation and taking mining leases. He has admitted that Chhaju Singh's financial condition was not good. Further he admitted that the land at item No. 6 along with the well was purchased by Umrao Singh. Evidence. of P.W. 4 is not at all relevant to the point in controversy. P. W 5 Amarnath deposed about the deposit of lease money by Banwarilal and Umrao Singh in regard to the mining leases in 1951 and 1952. He has also proved the receipts Exs. 2, 3 ,4 and 5. P.W 6 Prabhu Dayal has deposed that a sub lease was given to him out of the mining lease which was taken by Vishnu Awtar and the lease money was recovered from him by Vishnu Awtar and Umrao Singh He has also stated that Umrao Singh used to settle the accounts with him, He has deposed that Umrao Singh and Vishnu Awtar lived separately. Parshadilal P.W. 7 has also deposed that he had taken a sub-ease of the mine which was leased in the name of Vishnu Awtar and that Umrao Singh and Vishnu Awtar used to recover the lease-money from him. Umrao Singh used to settle the accounts with him. P.W. 8 Dhudiram simply stated that Umraosingh and his sons were joint P.W. 9 Mahesh Chandra who is a demands clerk in the mining department deposed that; that from 1-4-45 to 31-3-52, Neemdiwali mine was given on lease to Vishnu Awtar and the security for the lease money was given by Umrao Singh. He has also deposed that lease money of another mine known as Pahadiwal was deposited by Banwarilal son of Umrao Singh during the period from 1-4-46 to 31-3-49.
12. The evidence of these witnesses like that of the plaintiffs themselves does not help in showing that the disputed properties were purchased from the joint earnings of the parties. On the other hand, D. W 1 Mst. Patashi has deposed that Banwarilal had started living separately from Umrao Singh after the latter's marriage with her. She has stated that Banwarilal was already married when she was married to Umrao Singh. She has also stated that all the disputed properties were either purchased or built by Umrao Singh out of his personal earnings. She has stated that Vishnu Awtar was 3lso living separately after he had been married She has further stated that Umrao Singh used to do money-lending business also and that he had become Kanoogo some time after the marriage which took place some time in 1935. According to her, Umrao Singh was drawing a salary of Rs. 60/- P.M. and a conveyance allowance of Rs. 10/-.
13. Now so far as item No. 6 which consists of agricultural land is concerned, defendants have produced a certified copy of the mutation entry which goes to show that said land along with the well was purchased by Umrao Singh in 1929 in consideration of Rs. 1000/-, when even Banwarilal was very young. It is, therefore, clear that the plaintiff's version that the well on this land was constructed subsequently out of the joint earnings is not correct. Further this shows that even in 1929 the financial condition of Umro Singh was good so much so that he could afford to spend Rs. 1000/- in purchasing the land. It also shows that Umrao Singh since 1929 must have also earned some profits from the agricultural land besides the income from the said salary. Item No 6, therefore, cannot be held to be joint family property. Item No. 5 was purchased by Umrao Singh at a court-auction and the sale certificate is dated 15-4-53. The shop was sold in execution of Umrao Singh's money decree to which the plaintiffs were not parties. Therefore this property also cannot be held to be joint family property.
14. Property mentioned at item No. 4 was also purchased by Umrao Singh from the Custodian Department. There is no evidence that it was purchased out of the joint earnings of he father and the plaintiffs.
15. So far as items Nos. 1 and 2 are concerned, it is admitted by the plaintiffs that the house on item No. 2 was built by Umrao Singh According to Schedule 'Ka' the plaintiffs have estimated its value at Rs. 100/-. Item No. 1 is a sir all piece of land having a room with a thatched roof and a few trees in it and there is no proof as to when this land was acquired by Umrao Singh. It is true that house No. 2 was built by Umrao Singh over the land which was left by his father Chhaju Singh; but the plaintiffs have not proved the value of the land so that the court might have been able to award them some compensation for their share in it. At any rate, as the lower court has remarked, its value must have been quite negligible. The initial burden to prove that the properties mentioned at item Nos. 1, 2, 4, 5 and 6 were joint Family properties was on the plaintiffs and they have not succeeded in discharging that burden. On the ether hand, it is clear that Umrao Singh had sufficient n ears to acquire these properties. He bad other sources of income also from the agricultural lands as well as from his money-lending business. In these circumstances, the lower court was right in holding that the will executed by Umrao Singh in favour of his wife Mst. Patashi with regard to the properties is valid and the plaintiffs are not entitled to any share in these properties.
16. The lower court decreed the plaintiffs' suit in regard to items Numbers 3, 7, 8, 9, 10 and 11 of Schedule 'Ka'. It has determined the plaintiffs' share as 5/27th each. Similarly, the share of the other two sons and of the widow Mst. Patashi has been determined as 6/27. Each of the four daughters has been given 1/54 share in the properties. Learned Counsel for the appellants contends that the shares of the widow and the plaintiffs have not been correctly determined. According to him, the widow and the daughters have only 1/54 share in the property and in this 5/6th share left by the deceased, only the sons are equally entitled, Learned Counsel relies upon Section 6 of the Hindu Succession Act, 1956. Learned Counsel also relies upon a decision of the Bombay High Court in Shiramabai v. Kalgonda : AIR1964Bom263 . The argument is that by virtue of the proviso to Section 6 of the Act read with explanation 1, the deceased shall be entitled to 1/6th share in the coparcenary property because of the notional partition and as such his interest shall devolve upon his heirs recording to the provisions of this Act, that is to say the four sons, widow and the four daughters shall get equal share, that is, 1/54 in that 1/6th share. The argument proceeds further that the widow after having got 1/54 share as an heir will not get any more share in the coparcenary property on a suit for partition by the sons. It is argued that the right of the widowed mother to get a share equal to her son on a partition of the coparcenary property stands abrogated by virtue of Section 4 of the Act. To me, the contention does not seem to be correct.
17. Amongst others, the Hindu Succession Act, has made the following changes in the old law:
1. The limited ownership of a widow and other female heirs, known as 'widow's estate' or limited estate is abolished and converted into full ownership, and
2. an undivided interest of a coparcener in a Mitakshra joint family property or of a member of a marumakkattayam, aliyasantana or namboordi family property is not only made heritable but also capable of being disposed of by a testamentary document.
Before the enforcement of the Hindu Women's Rights to Property Act (Act 18 of 1937), the widow mother was entitled to a share equal to that of the son in the coparcenary property if a partition took place between the sons. After the coming into force of Act No. 18 of 1937, on the death intestate of Hindu governed by Mitakshara School of Hindu Law, leaving separate property, his widow became entitled to the same share, in respect of the property in respect of which the husband died intestate, as a son. In regard to the husband's interest in the joint family property, the widow acquired in that property the same interest which her husband had at the time of his death. In Pratapmull Aggarwal v. Dhanbati Bibi AIR 1936 PC 20 it was made clear that:
according to the Mitakshara law the mother or the grand-mother is entitled to a share when the sons divide the family estate among themselves; but she cannot be recognised as the owner of such share until the division is actually made, as she has no pre-existing right in the estare except a right of maintenance. The mother, it was held, does not become owner of the share allotted to her by a preliminary decree in a partition suit of her son, until the preliminary decree was carried out and actual division of the joint family was made. The widow mother of course could not compel a partition so long as the sons remained joint.
The Supreme Court in Munnalal v. Rajkumar AIR 1962 AC 1493 after referring to the above decision of the Judicial Committee held with reference to Section 4 and 14 of the Succession Act that by declaration heirs' rights in a preliminary decree, the great grand-mother Khilona Bai became entitled to the absolute rights in the property. It was held that having regard to S 14 of the Hindu Succession Act, it cannot be assumed that the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull Aggarwala v. Dhanbati Bibi (supra). It, therefore, follows that the right of a wife or mother to a share in partition is not a mere personal right meant to assure her of her maintenance but is a right in property. The Hindu Succession Act is principally a mere law of inheritance containing rules of devolution of property on the death of a person and has not affected the rights of a mother to a share equal to that of a son in the coparcenery property when actual partition takes place between the sons.
18. Section 6 recognises the Hindu Law of survivorship but by the proviso creates an exception & provides for devolution of the deceased coparcener if he dies intestate & leaves any of the female heirs specified in Clause 1 or male relative specified in that class who claims through such female relative. Explanation (1) defines the expression ''the interest of the deceased in the Mitakshara coparcenery property' and incorporates into the subject the concept of of notional partition, for the purpose of enabling succession to and computation of an interest which was otherwise liable to devolve by survivorship and for ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule.
19. I am unable to agree that Section 4 of the Succession Act has abrogated the old rule of Hindu Law under which the widow mother was entitled to a share equal to that of the son at the time of actual partition among the sons. The over-riding effect of Section 4 is only in regard to such matters 'for which provision is made in the Succession Act'. The Succession Act does not contain any provision in regard to the rights or the share of the wife or the mother in the coparcenery property at the time of the partition, Therefore the rights of the widow mother under the old rule of Hindu Law cannot be said to have been curtailed by Section 6 of the Act.
20. The correctness of the decision in Shiramabai v. Kalgonda : AIR1964Bom263 was doubted by the same learned Judge of the Bombay High Court in a later Bench decision reported as Rangbhai v. Laxman : AIR1966Bom169 , and the learned Judge did not refer the matter to a larger Bench for re consideration and, observed that as he was a party to the decision in the earlier case, he could state that the matter was not fully argued then and the Bench was not in a position to consider all the pros and cons of the matter.
21. In Gopal Narain v. D.P. Goenka : AIR1971Delhi61 , P.N. Khanna J. also dissented from the view taken in Shriamabai v. Kalgonda (supra) and observed:
The overriding effect of the Hindu Succession Act, created by Section 4 is only in respect of such matters, for which provision is made in this Act'. In the absence of any provision in the said Act, the question of the said Act overriding any text, rule or interpretation of Hindu Law in force immediately before the commencement of the Act in respect of such matter does not arise.
The fact that the right of the mother to maintenance has been recognised and codified under the Hindu Adoption and Maintenance Act, 1956, is not at all indicative of the fact that she was not intended to be given a share at partition on the joint family property.
22. I am, therefore, of the view that according to the proviso to Section 6 read with Explanation (1) on a notional partition, the interest of Umrao Singh in the property was 1/6th as he had four sons and his wife. That 1/6th share would now devolve upon all the four sons, the four daughters and the widow that is each one of them will have 1/54th share. Besides this, on partition of the property the remaining 5/6the share in the property shall be equally divided between the four sons and the mother each getting 1/6th share. The lower court has, therefore, rightly declared the shares of the parties in the joint family properties Nos. 3, 7, 8, 9, 10 and 11 of Schedule 'Ka'. The plaintiffs and the other two sons and the widow will have 5/27 the share each while the four daughters 1/54th share each in the property.
23. This appeal has, therefore, no force and is accordingly dismissed with costs.