Purnia Vs. State of Orissa - Court Judgment

Excerpt:
- [j.m. shelat,; r.s. bachawat and; v. bhargava, jj.] clause (a) of sub-s. (1) of s 8 of the hindu law women's rights act 1933, provided that at a partition of joint family property between a person and his son or sons, those entitled to share with them would be his mother his unmarried daughters, and the widows and unmarried daughters of his predeceased undivided sons and brothers who had no male issue. clause (b) provided that when the partition was between brothers, those entitled to share with them would be their mother, their unmarried sisters, and the widows and unmarried daughters of their predeceased undivided brothers who had left no male issue. according to cl. (c) clauses (a) and (b) would apply, mutatis mutandis, to a partition among other coparceners in a joint family. clause (d) laid down that when a joint family property passed to a single coparcener by survivorship it would so pass subject to the right to share of the classes of females enumerated in the earlier clauses. sub-s.(2) of s. 8 fixed the shares of the aforesaid relatives. sub-s.(3), inter alia, defined the term 'mother' as including whether there were both a mother and a step-mother, all of them jointly, and the term 'son' as including a step-son, a grandson and a great grandson. it also provided that the provisions of the section relating to the mother would be applicable, mutatis mutandis, to the paternal grandmother and great grandmother. m died in 1951. the plaintiff respondent was one of his widows and the appellant was his sole surviving grandson. in a suit for her share filed by the respondent the question was whether in the terms of cl. (d) of sub-s. (1) of s. 8 of the aforesaid act, the respondents was entitled to a share. the trial court decreed the suit and the high court upheld the decree. the appellant came to this court by certifi- cate. it was contended on behalf of the appellant that cl. (d) pre-supposed a partition between the penultimate and the sole-surviving coparceners and that therefore all the femalies in cl. (a), (b) and (c) could not be said to be entitled to a share. held:per bachawat and bhargava, jj.-when determining the scope of the right under cl. (d) there is no need to envisage an assumed partition and there is no justification for holding that cl. (d) must be interpreted on the basis of an assumed partition between the sole surviving member of the family and the co-oparcener who immediately pre-deceased and as a result of whose death the property passed to the sole survivor. [127]. the object of cl. (d) is to give to all females entitled to maintenance from the coparcenary property a right to claim a share in the .joint family property instead of a right to maintenance and that is why reference is made in it to all the females enumerated, in cls. (a), (b)and (c), clauses (a) and (b) refer to four classes of females viz. the mother, the widow, the unmarried daughter and the unmarried sister. all these four classes of females are within el. (d). [129b-c]. sub-s. (3) of s. 8 lays down that the provisions of the who- lie section relating to the mother are to apply mutatis mutandis to the paternal grandmother and great grandmother. consequently when the classes of females entitled to shares under el. (d) are to be ascertained and it is to be found out whether a mother mentioned in el. (a) of (b). is entitled to share, the persons included in the expression 'mother' would be a 'step-mother' and further, the provision conferring the right on the mother would also confer the right on paternal 'grandmother and great grandmother, because cls.(a) and (b), which relate to a mother are to be applicable mutatis muttandis to paternal grandmother and great grandmother also. on this interpretation of el. (d) read with cls. (a), (b) and (c) and sub-s. (3) of s.8., the respondent must be held entitled to a share. as the widow of m a coparcener, she was entitled to a one-fourth share. [ 124d-g]. venkatachaliah v. ramalingiah, 49 mysore h.c.r. 456, dakshinamurthy v. subbamma, 45 my. h.c.r. 102 and kolla natrasinha setty v. nanjamma, 45 my. h.c.r 460 approved. venkatagowda v. sivanna, [1960] my. l.j. 85, referred to. per shelat j. (dissenting). there can be a right to a share only if there is a partition and not otherwise. there is a distinct difference between cases falling under el. (a) (b) or (c) when a share vests in the female relatives enumerated therein when actual partition takes place and cl.(d) where no partition can occur. a partition, has therefore to be assumed because it is only on such assumption that females on whom a right to share is conferred can be ascertained. the question as to who are those females entitled to such a share depends upon which of the cls. (a) (b) or (c) applies to such a theoretical partition. in the present case in view of the definition of a 'son' in sub-s. (3) the assumed partition would be between a 'lather and a son under el. (a). under that clause the respondent would have no right to a share either as the wife of m or as the grandmother of the appellant. the extended meaning given to the word 'mother' in s.8(3) would include the grandmother of m and not of the appellant. [138e-g: 139a-0]. venkatapathiah v. saraswathana, 16 my. h.c.r. 273, narasimha setty v. nagamma, 18 my. l.j. 461, nagendradasa v. ramakrishnan, 19 my. l.j. 277, dakshnaimurthy v. subbamma, 45 my. h.c.r. 102, venkatachaliah v. ramalingiah. 49 my. h.c.r. 456 and venkatagowda v. sivanna, [1960] my. l.j. 85, referred to.s. murtaza fazal ali, j.1. in this appeal under the supreme court (enlargement of crl. appellate jurisdiction) act, the appellant has been convicted under section 302 ipc and sentenced to imprisonment for life. the appellant was acquitted by the trial court but on appeal preferred by the state to the high court, the order of acquittal by the trial court was reversed and converted into conviction as stated above. the facts of the case have been fully detailed in the judgment of the courts below. 2. mr. puri appearing in support of the appeal has submitted that even on the findings of the trial court no case under section 302 ipc is made out on the proved facts. mr. mukherjee appearing for the respondent conceded that in the circumstances of the present case, the case squarely falls not under section 302 ipc but under section 304(1) and the high court was not justified in convicting the appellant under section 302 ipc. after having gone through the judgment of the high court and that of the sessions judge, we also feel that the case does not fall under section 302 ipc but it falls under section 304(1) ipc. for these reasons, therefore, the appeal is allowed to this extent that the conviction of the appellant altered from that under section 302 ipc to one under section 304(1) ipc and the sentence is reduced from life imprisonment to seven years' r.i.