Case: Manohar Lal Ganeriwal &amp; Others Vs. Bhuri Bai &amp; Others

2. The facts as found by the High Court, which are no more in dispute may now be stated. The plaintiffs obtained a decree against defendant No. 5 for possession of the suit properties. When they levied execution of the decree, Defendants 1 to 4 objected to the execution alleging that they were in possession of the suit premises in their own right and that they were not liable to be evicted. That objection was upheld by the execution court. Thereafter the plaintiffs instituted a statutory suit under Order 21, Rule 63, Code of Civil Procedure for a declaration of their title to the suit properties and for possession of the same. The suit was dismissed by the trial court and that decree was affirmed by the 1st appellate court. But the same was reversed by the High Court3. The suit property originally belonged to the Hindu joint family consisting of one Bhagwan Das and his son Rameshwar Lall. Rameshwar Lall died sometime in 1933 or 1934, leaving behind him his widow Jaidei, his two daughters, his father and mother. After the death of Rameshwar Lall, Bhagwan Das was the sole surviving coparcener in his family. Bhagwan Das died sometime in 1944 or 1945, leaving behind him his widow Mahadei, hisw and two. Mahadei and one Satyanarayan who claimed to be the adopted son of Rameshwar Lall sold the suit property to the plaintiffs in 1952. Thereafter Jaidei and her two daughters sold the same property to the appellants, on January 16, 1960. The appellants have denied the adoption of Satyanarayan and the same has not been satisfactorily proved.

Reasoning: 4. The Act came into force in 1937. Rameshwar Lall died as seen earlier in 1933 or 1934. Section 4 of the Act makes it clear that the Act is not to operate retrospectively. Hence Jaidei cannot claim any right to the suit property through her husband who had died long before the Act came into force6. Jaidei can have a share in the property only if the property is held to have been the "separate property" of Bhagwan Das. As seen earlier Bhagwan Das became the sole surviving coparcener in the family after the death of his son Rameshwar Lall; but even then he did not become the absolute owner of the property though his rights in the property were enlarged to a large extent. It is not necessary to spell out the nature of the rights obtained by him after the death of his son Rameshwar Lall. But, suffice it to say that the joint Hindu family continued. It is now well settled that a property obtained by the sole surviving coparcener in a family does not become his "separate property" so long as there is a woman in the family who can bring into existence a new coparcener by adoption. At the time of the death of Bhagwan Das, his widow Mahadei and hisw were alive. That being so, the joint family cannot be held to have been disrupted.The learned for the appellants very fairly conceded that if we are unable to hold that the suit property was the separate property of Bhagwan Das at the time of his death, the appeal has to fail. According to him on the death of Rameshwar Lall, the whole property became the separate property of Bhagwan Das.This contention has to be rejected without elaborate examination in view of the decision of Federal Court in Rm. Ar. Ar. Rm. Ar. Ar. Umayal Achi v. Lakshmi Achi and Others, ([1945] 7 FCR L : AIR 1945 FC 25) which decision was quoted with approval by this Court in Angurbala Mullick v. Debabrata Mullick. (1951 SCR 1125 : AIR 1951 SC 293  )7. The Federal Court in Umayal Achis case (supra), held that the property held by a person as a sole surviving coparcener of a joint Hindu family is not his "separate property" within the meaning of Section 3(1) of the Act. The distinction between "separate property" and joint family property would be clear if we compare the provisions contained in Section 3(1) and Section 3(2).