CommiJsioner ef

Jncem,•lax Bomb'!)' Ci17 l v.

B•i S; irU.."i

K. 1'111:•

Satf.ar .1.

' 418

SUPREME COURT REPORTS (1962] SUPP.

that the a;; sessee's Taxable profits on the sale of the shares earlier held as investment are the difference bet\rncn the sale price and the cost price, that is, the price at which she ha.<l actually bought those shares.

BY COl7RT : In accordance with the opinion of the majority, this appeal is dismiBSed with costs.

Appeal dismi8sed. --

S. S. MUNNA LAL

Ft6t11t1Ty 2.1. v.

S. S. RAJKUMAR AND OTHERS (S. K. DAS, M. HmAYATULI, AH a.nd J.C. S1uH, JJ.)

Hindu Lau.~.Jai11s-Adoption-1Vidow, if can odopt without express authority of husband-l'rrliminary decree. for partition dr:clarinu uidotti's sharr-JJ'hrther share ''possr.ssed" by widow--

Death of ui1lou,•-/f shrzrr rpt;('.r/s to es/11.l"-llindu ,'-; ucces.riion Act, I:9; iG (30 of J95G), ss. 4, U, J/i ond 16.

 G, a Digambcr Jain of the Porwal sect, died in 1934 leaving behind his widuw Smt. K, his son G who died in 1939 and three grandsons M, P and R.

In 19j2 M's son S filed a suit for partition of the joinr family properties.

Rajkumar, c1aiming to b~ a son of P adoptr-d by his widow, claimed a I/4th share in the joint family property. The adoption was challenged on the ground that no express authority had been gi\'en by P to his widow to adopt. The trial court held that no express authority \vas required by a son less Jain widow to adopt a son and that the adoption was duly and properly made. .\ccorciingly. a preliminary dece declaring the shares of Smt. K, the branch of M, the branch of R and of Rajkumar to he lf4th each was passed.

Mand others preferred an appeal to the Iligh Court mainly against the findings on the question of adoption.

During the pendcncy of the appeal, the Hindu Succession ,\ct, 1955, came into force.

Shortly thereafter Smt. K died. The High Court upheld -:.he decision of the trial court on the question of the adoption of Rajk11mar.

With respect to the share of Smt. K the High Court held that her interest declared by the prelimi nary decree \Vas inchoate, that she never bcca1ne "possc.ssed"2

3 S.C.R. SUPREME COURT 11EPORTS 419

of any share within the meaning of s. 14 of the Act and that 11142 it remained joint family property which became divisible s. S, Munna Lal amongst the parties proportionately to their shares. The •. appellants contended that the adoption of Rajkumar was S. 8. Rajkumar invalid as no custom applicable to the Porwal sect of the J ains had been established empowering a widow to adopt without the authority of her husband and that the I/4th share of Smt. K declared by the preliminary decree had become her absolute property by virtue of s. 14 of the Act and upon her death it descended to her grandsons M and R to the exclusion of other parties.

Held, that the adoption of Rajkumar was valid.

A son• less Jain widow could adopt a son without the express authority of her husband.

Such a custom among the Jains (not domiciled in the States of Madras and the Punjab) has been recognised by judicial decisions spread over a period longer than a century.

Though none of these decisions rela~ ted to the Porwal sect of .Jabalpur to which the . parties belonged. They laid down a general custom of the Jains which were applicable to the parties.

The decisions proceeded not upon any custom peculiar to any locality or to any sect of the Jains but upon general custom which had by 1ong acceptance become part of the. law applicable to them. Where a custom is repeatedly brought to the notice of the Courts, 1he courts may held that custom introduced into the law without the necessity of proof in each individual ca5 e.

Pemraj v. Mst. Chand Kanwar, (1947) L. R. 74 l. A. 224 and Mangibai Gulabchand v. Suganchand Bhikamchand, A.LR. (•1948) P. C. 177, relied on.

Sheokuarbai v. Jeoraj, A.LR. ( 1921) P .C. 77, Sara<wathi Ammal v . .Jagadambal, (1953) S.C.R. 1939, Maharajah Govind nath Ray v. Gulal Chand, (1833) 5 Se!. Rep. 276, Bhag1vanda, s Tejmal v. Rajmal Alias Hiralal Lachmindas, (1873) 10 Born.

H.C. Rep. 241, Shea Singh Rai v. Mst. D~<ho and Moor, iri Lal

(1878) L.R. 5 I. A. 37, Lakhmi Chand v. Gatto Bai, (1886) I.L.R. 8 All. 319, Manik Chand Golecha v. Jagit Settani,

(1889) I.L.R. 17 Cal. 518, Hn' nabh Pershad alias Rajajee v.

Ma.ngilDa<, (189q) I. L. R. 27 Cal. 379, ManohmLal v.

Banarsi Das (1907) I. L. R. 29 All. 495,_Asharfi Kttnwar v.

R?tpchand, (1908) I.L.R. 30 All. 197, Rup Chand v. Jambu Prasad (1910) I.L.R. 32 All. 247,.Jiwraj v. Mst. Sheokuwarbai, A I.R. (1920) Na<!. 162, Ranarsi Jlas v. Sttmat Prasad, (1936) I.LR. 08 All. 1019 and Rama Rao v. Raja of Pittapnr, (1918) L. R. 45 I. A. 148, referred to. \

Hold, further that the !/4th share of Smt. K declared by the preliminary decree was "possessed" by her and on hr

S. S. 1lfunuo L..l ..

.~'. S. Rajhi-mar

Shoh J.

death it descended to her grandsom in accordance with provisions of ss. 15 and 16 of the Act. The word "possessed" in s. 14 was used in a broad sense meaning the state of owing or having in one's power. The rule laid down by the Privy Council

that till actual division of the share declared in her favour Ly a preliminary decree for partition of the joint family property a Hindu \vife or mother was not recognised as owner of that .share cann.ot apply after the enactment of the Hindu Succession Act, 1956.

Section 4 of the Act made it clear that the Legislature intended to supersede the rules of Hindu law on all 1nattcrs in respect of which there \Vas an express provision made in the Act.

(luTn11lapura Tag(/inn Jfafada Kotf'uru1tuami v. i..9tfrn Ve.rayya, f 1959) 1 Supp. S.C.R. 968 and Pralqpmull Agaruvtf/a

v. Dliarwbali Bibi, (1935) L.R. 63 I.A. 33, referred.to.

C1nL APPELLATE JuRISDICTI01' : Civil Appeal No. 130 of 61.

Appeal by special leave from the judgment and decree datNl April 25, 1959 of the Madhya

Pradesh High Court in First Appeal N"o. 139 of

}9;)5.

M. C. Sek!lvad, ,!tt, orney-Gentral of India, 8. T.

Desai, J. B. Dadaclumji, 0. C. Jfatku,- und Ravinder Narain, for the appellants.

Saijoo Pra8ad and G. C. Jfathnr, for respondents o. I and 2. (}anpat Rai, for respondent Xo. 3.

196:1. February 23.

The Judgment of the Court was delivered by

SHAH, J.-This appeal with special le&ve i8 against the decree of the Madhya Pmdesh Hir; h

Court confirming the decree of the 1st Additional District. Judge, Jabalpur in Civil Suit No. 12-A of

1952.

The dispute between the p&rties arose in a suit for partition of joint family property. The parties are Digambar Jains of the Porwal Sect and

ro residcntl! of Jabalpur which at the material time

was in Madhya Pradesh. The following pedigree explains the relationship between the parties :

I ,\. uunalal (Def. 1)

Pyaribahu

(Def. 4)

I I

Garibdas=Mst. Khilonabai

d. 24. 7 .34 (Def. 3) d.3. 7 .56

I I Gulzarilal I d. 13.4.39

I I Padamchand d.10.1.36 Ramchand (Def. 2)

widow Bhu1ibai

(Def. 11) ·

I Adopted son Rajkumar (Def. 12) adopted 26.7,52

Chandranibahu (Def. 8)

I I

I I I I I Saheblal Ballu Nand Hiralal Ishwari I I Kumar Prasad (Plaintiff) (dead) (Def. 5) (Def. 6) (Def. 7)

I I

I Rajendra Kumar (Def. 9) Abbay Kumar (Def. lO)

Saheblal son of Munnalal filed Suit No. 12A of 1952 in the Court of the 1st Additional Subordinate Judge, Jabalpur on June 21, 1952, for a decree of partition and separate possession of his l/12th share in the joint family property.

He claimed that in the property his father's branch was entitled to have a half share and the remaining half was owned by

IY6S

S. S. Munna Lal

. . v.

S. S. Rojkumar

Shoh J.

S.S. Mun11a Lal

•• S. S. Rqjkumar

Shah J.

Ram Chand and his branch. The Additional Dist rict Judge ordered, that Khilonabai grandmother of llfonnalal and 1'.amehand-the wivrs of ?llunnalal and Ramehand and their sons and Bhuribai (widow of

Padamchand) and Hajkum.ar who chimed to be a son of Padam Chand by adoption by Bhuribai on July 26, 1952, be implcadc<l as defendants to the suit.

At the trial l>f the suit the right of Saheblal to a share. in th<' property was not qmstioned: tho dispute principally turned upon the claim made by Bhuribai and her adopted son Rajkumar to a share in the property.

Padamrhand had died before tho enactment of the Hindu Womens' Right t-0 Property Act, 1937, and his widow could not claim by virtue of that Act a share in the property of the family.

But Bhuribai and Hajkumar pleaded that the parties were governed in the matter of adoption by the customary law prevalent amongst the Jains of Central India, ;\ladhya Pradesh, Vindhya Pradesh, North and W('stern India, and Hajkumar as a son adopted by Bhuribai to Padam Chand became a coparcener in the joint family a11d entitled to a share in tho property and accretions thereto.

The validity of the adopt.ion of Rajkumar was challenged 011 many grounds, one only of which is material in this appeal. It was submitted hy the conte5ting defendants and Bhuribai had no authority exptess or implied from her husband Padam Chand to adopt a son and that the adoption of Rajkumar as a son without such authority was invalid. 'lhe Additional District Judge rejected this plea and ordered a preliminary decree for par ti ti on and declared that the share of the plaintiff was I/24th, of ;\Iunnalal, his wife and _3 sons eolleutivoly was 5/24th, of lamchand and hlB sons l/4th, of Khilonabai I /4th and the remaining l/4th share belonged to Iiajkumar.

Against the decree, Munnalal, Ramchad, Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High Court of Madhy.a Pradesh.

During the pendency of this appeal Khilonabai died on July 3, 1956 and Ramchand and Munnalal applied to be implea~ ded as her legal representatives in respect of the interest in the property awarded to Khilonabai by the preliminary decree. By order dated December 12, 1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of ss. 15 and 16 of the Hindu Succession Act, 1956 which was brought into operation on June 14, 1956, and that the sons of Munnalal, Rarnchand and Padam Chand could not take a share in Khilonabai's interest.

Before the High Court two questions were canV:assed: (1) as to the factum and validity of the adoption of Rajkumar, and (2) devolution of the share of Khilonabai declared by the . preliminary decree on her death. The High Court upheld the finding of the trial Court that Rajkumar was in fact adopted by Bhuribai as a son to her husband on July 26, 1952, and that amongst the Jains residing in the North West Province, Central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in that behalf. In so holding the High Court relied upon the judgments of the Privy Council in Pemraj v. Mst.

Ohand Kanwar and Mangibai Gulabchand v.

Suganchand Baikamcand (1:. But the High Court declined to accept the view of the trial Court that the right ofKhilonabai declared by the preliminary .decree devolved upon Munnalal and Ramchand alone. In their view, Khilonabai's interest under t.he decree being incohate was not "possessed" by her within the meaning of s. 14

(I)

(1947) L.R. 74 I.A. 254. (2) A.i, R. (1948) P.C. 177.

1962 -·-

8. S. Munna Ltl

S.S. Rajkumar

Shah J.

8 S. !llwmo Loi

S. ). Rojlnanir

:>hoo J.

of the Hindu Succession Act, 1956, and on her <loath it merged into the cstato, The High Court observed : "The result is that the interest of Smt.

Khilonabai remained incubate am! fluctuating , o that after her death, the interest decla1cd by the preliminary decree is available for partition as joint family property and consequently ss.lii and lt.i of the Hindu Succession Act arc inapplicable to tho interest. As the property never became her absolute property by virtue of s.14 of the Act, the same remained joint family property." Accordingly the

decree of the trial Court was modified and l /:kd Share in the joint family property was awarded te

Rajkumar, l/:!rd to the branch of :IIunnalal u11d the remaining 1 /:Jrd to the bra11ch of Ramchaud and adjustments were made on that footing in the shares of the plaintiff and other membors of the family.

In this appeal by defendant Xo. 1 (lunnalal) 2 (Ramchand) and 4 to 10, three contentions were raised :

(1) in the absence of express authority from her husband, Bhuribai could not adopt a son,

(2) that the interest of Khilonabai under the preli minary decree became her absolute property by virtue of s.14 of the Hindu Succession Act, 195ti and on her death it devolved upon her giandsons Munnalal and gamchand-defonctants I and 2-and

(3) the trial Court was in error in delegating to a Commissioner judicial function, such as, a.llcertainment of property to be divided and effecting partition.

The third question is easily answered. The trial court appointed a commissioner to propust a partition of joint family propt>rty, and for that pur pose the court authorised bim to ascertain the property, the debts which the family owed and also tho mdividual liability of the parties for the debts.

For deciding those questions the Commissioner was empowered to record statements of th& part ics, frarue

issues and to record evidence as might be necessary.

The commissioner waR also directed to submit his proposals relating to the right of Bhuribai to b.e maintained out of the joint family property. This order, it appears, was passed with the consent of all the parties. It is true that the decree drawn up by the trial Court is not strictly in accordance with the directions given in the judgment. But it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the property, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family.

By so authorising the Commis>ioner, the trial Court did not abdicate itR functions to the comissioner : the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the Court would &djudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the commissioner cannot f1 om their very nature be binding upon the parties nor the reasons in support thereof. The order it may be remembered was made with the consent of the parties and no objection to the order was, it appears, pressed before the High Court.

We do not think that any case is made out for modifying that part of the order.

The parties to this dispute are Digamher J ains of the Porwal sect and are resident of Jahalpur.

Jains have generally been regarded as heterodox Hindus and in the absence of special custom they are governed by the rules applicable to Hindus. As observed by the Privy Council in Sheokuarbai v. Jeorafj.(') The Jains are of Hindu origin ; they are Hindu dissenters, and although as was pointed out by Mr. Mayne in paragraph 46 of his Hindu Law and Usages-"Generally adhering to ordinary Hindu law, that is, the law of the three

(I) A.I.R. (1921) P.C. 77.

196~

S. S. llfuna Lal

v, S. S. Rajkum'°r

Shah J.

19~

8. S. llumaa Lal

S, S. J, n)kt.mOT

Shah J.

4Hi SUPREME C'OURT REPORTS (1962] stJPP.

superior castes, they recognise no divine authority in the Vedas and do not practise tht: Shradhs, or cere111ony for the dead." "The due performance of the Shradhs, or religious ceremonies for the dead, is at the baso of the religious theory of adoption, but the Jains have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contra1y usage x x x." But amongbt the Jains a custom enabling a widow to adopt. a son to her husband without express authority has been recognised by judicial decisions spread over a period longer than a century. In Pemraj v. ,}f'U8Gmmad Chand Kanwar(:), the Judicial Committee of the Privy

Council after •a review of the case law obseved :

"x x x x, in many other parts of India" (parts other than the Provinces of Madrae and the Punjab) "it has no"" been established by decisions based on evidence from widely separated districts and from different sect.s that the Jains observe the custom by which a widow may adopt to her husband without his authority. This custom is based on religious knants common to all sects of Jaine, and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband may be affected by the adoption, and though it cannot be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none oft.he cases has a distinction been drawn between one sect and another. It is now in their Lordships' opinion no longer premature to hold that the custom prevails generally among all Jaine except in those areas in which there a1 e opccial reasons, not operative in the rest of India, which explains why the custom has not established itself, Mayne, in his treaties on Hindu Law and Usage, at pai:o 209, has lent the weight of his authority to the proposition that among the Jains, except in tho MadraH Presidency a sonless widow can adopt a son to her

(l) (1947) L.K. 74 LA. 2$4.

husband without his authority or the consent of his sapindas". This view was reiterated by the Privy Council in a case reported in Mangibai Gulabchand

v. 8uganchand Bhikamchand (').

The Attorney General for the appellants, however, contends that there is no evidence of a custom authorising the widow of a Porwal Digamber Jain residing in Jabalpur to adopt a son to her husband without express authority. Counsel submitted that the observations in the two cases relating to the custom of adoption must be restricted to the sects to which the parties to these cases

belonged, and in so far as they purport to extend the custom to all Jain residents in India outside Madras and the Punjab they are mere d!cta and not binding upon this Court.

In Pemraj's case the parties belonged to the Khandelwal sect domiciled and resident in Ajmer and in Mangibai's case the parties were Marwari Jains of the Vis-Oswal sect who having migrated from J odhpur had settled down in the Thana District of the Bombay Province, but the opiniun of the Judicial Committee expressly proceeded upon a well-recognised custom applicable to all Jains in the territory of India (excepting Madras and the Punjab) and not upon proof of a restricted custom governing the sects of Jains to which the parties belonged. Undoubtedly, as observed by this Court in 8araswathi Ammal v. Jagadamhal (') in dealing with the quantum of proof rvquired to prove a family or local custom, "it is incumbent on a party Retting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any customs applicable to the, parties concerned that can be the rule of decision in a

particular case. x :x: x

(1). A.J.R. (1948) P.C. 177.

(2) {1U53) S.C.R. 939.

S.S. Munna.Lal v.

8. S. Rajkwnar

Shah J.

J96Z

S.S. Munna l<il

S. 8. Rikwnar

Shall J.

428 SL.il>REME COGRT REPORTS [1962] SUPP.

Theory and custom arc antitheses, custom cannot be a matter mere of theory but must always be a matter of fact and one custom cannot uo cleductcd from another.

A community living in one particular district may have evolved a particular custom but from that it does not follow that the cummunity living in another district is necessarily following the same custom." But the application of the custom to tho parties to this .appeal does not appear to proceed upon analogies or dcductioDS.

It governs the parties, because the custom has become a part of the law applicable to Jains in India (except in Madras and the Punjab) by a long and uninterrupted course of acceptance. .

A review of the cases decided by difforent Courts clearly shows that the custom is generally applicable to Jains all over India, except the Jain domiciled in Madras and the Punjab. The earliest case of which a report is available is Maharaja <iovirulnatli Ray v. &'uld Charul (') decided by the

Saddar Court Calcutta in Hl33.

In that case the validity of an adoption by a Jain widow of a sou without express authority from her husband was questioned. The Court after consulting the Pundits held that by Jain law a sonless widow could adopt a son just as her husband for the performance of religious rites and that the section of the 1; itis or priests to tho adoption is not essential. In Bhagwanda, s Tejm1.Jl v. Rajrnal aliasliiralal Lachmidas(')

tho Bombay High Court opined that the widow of a Jain was a delegate either by express or implied authority to adopt a son, but she could not d., logate to another person that authority to adopt a son to her husband after her death. In Shea Sirujh Rai v.

M U&1-Umut Dakho flnd ti oorari Lal, ( ') decided in I 878, the Privy Council affirmed the view of .the North West Provinces High Court that a sonles widow of a Jiiin had the right of adoption without the permission of her husband or the consent

ii) (1833) 5 Sel. Rep. 276.

(2) (1873) 10 llom. H.C. Rep. 211.

(3) (1878) L.R. 51.A. 87 •

of his heirs.

In that case before the Subordinate Judge and bC; fore the High Court evidence was recorded of the custom applicable to Jains general ly, in different place such as Delhi, Jaipur, Mathura, Banaras and it was held that the custom was established by evidence. The parties to the suit were Agarwal Jains of Meerut District, but decisi"n uf tho Board proceeded upon a custom found on e ,•idence to be common to all J a ins. In Lakhmi, Chand v. Catto Bai. (') decided in 1886, again the power of a Jain widow to adopt a son to her deceased hmband was held proved. In Jlilanik Chand Golech'l

v. J agat Settani, ( 2) decided in l 889, the High Court

of B"ngal upheld a r.ustom in respect of adoption by a widow of an Oswal Jain. Tho deci8ion of the Court did not proceed upon any custom peculin, r to the Oswal sEct. In Harnabh Pershad alias Rajajee v .

./J1angil Das(') decided in 1899, it w>is held upon the evidence consisting partly of judicial decisions and partly of oral evidence that tho custom thl]-t a sonless Jain widow wn, s competent to adopt a son to her husband without his permission or tho consent of his kinsmen, was sufficiently established and that in this respect there was no material difference in the custom of the A!l'garwal, Choreewal (Porwal), Khandwal and Oswal sects of the Jains ; and that there was nothing to differentiate the Jains n, t Arrah from the Jains elsewhere.

The judgment of the case proceeded upon an elaborate examination of numerous instances in which the custom was held established. In Manohar Lal v. Banarsi Das(') and in A8 ha1ji K1tnwar v. Ru.pchanrl(') a similar castom was held esta.hlished. In the latkr ca, se a large number of witnesses were examined at different places and on a review of th0 decisions and the evidence the Court held the m1stom proved. ' The judgment of the Allahabad

(l) (1886)1.L.R.UAl\.319.

(2) (188'lJl.1-.R.17Cal.5<8.

(3) (18991J.L.R.27 Cal. 379.

(4) (1907) 1.1 .. R. 29 All. 495.

(5) (1908) J.L.R. 30 All. 197.

l:Jb2

S. S. iJ'Iurina L'll

S.S. Rajlcnml'r

19fi2

S.S. Munno LaJ

S. S. Rajkumor

Shah J.

430 SUPREME OOURT REPORTS [19e2) SUPP.

High Court in .-1sharfi's case was affirmed by the Privy Council in R11p Chand v.· .Jamim Prasod. ( r) It may be stated that the right of a .Jain widow to adopt without authority of her husband was not questioned before the Privy Council. Iu Jiwraj

v. Jft. Sl/R/Jhw:ar/J(Ji (') the Court of the Judicial Commissioner, agpur held that the permission of the husb1ind was not neceHSary in the case of a Jain widow. to adopt a son. This c'l.Be was also carried to the Privy Council and the judgment was affirmed in Slieokuarbut v . .Jr.oraj (").

In Banarsi Das v. Samat Prasad(') a similar custom was held

estitblishcd. The decisions in all theRe c&Bes proceeded not upon any custom peculiar to the locality, or to the seet of .fains to which they belonged, but upon tho view that being Jains, they wore govern1•d by the custom which had by long accep

ta.nee hecome part of the law applicable to them. It is well-settled that where a custom is repeatedly brought to the notice of the Courts of a countrv, the courts mav hold that custom intro duced into the law without the neceBSity of proof in each individ1ml case. (Ramn. Rno v. Raja of Pitlapnt) (•).

The plea ahout the invalidity of the 1ldoption of Rajkumar by Rlmribai must therefore fail.

Khilonabai died after the Hindu Succession Act was brought into operation on June 14, l!l51l.

This Act by s. 2( I )(b) applies to Hindus and also to persons who arc , Jains by religion.

The preliminary deer"e was passed on .July ~9, 195.5, and t.J.ercby Khilona.hai wa.s declared entitled to a fourth Hhare in the property of the family.

Section 14 of ,, f the Hindu SuccoHsion Act, l!l51l provide~:

•'14(1) Any property possessed hy a fomalo Hindu, whether acquired before or after the commencement of this Act, ahall be

11) (19IOJ [.J..R. 32All.1f7. 121 A.I.R. (1920\ Nag.162.

<3) A.!.R. (1921) P.C. 7;

(4) (1936) l.1-R 58 All.1019. (5)

(1918) L.R. 4 5 I.A. 11~.

3 S.C.R.

SUPREMJJ: COURT REPORTS 431

held by her as full owner thereof and not as a limited owner.

EXPLANATION. In this sub-section "property" includes both movable property acquired by a female Hindu 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 exerti-On, or by purchase or by prescription, or in any other manner "hatsoever, and also by such property held by her as stridhana immediately beforn the commencement of this Act. ·

(2) Nothing contained in sub-section ( l) shall apply to any property u.oguired by

way of gift or under '.1 will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." Section l 5 provides:

"15 (I) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- -

(a) firstly, upon the sons and daughters (including the children of any predeceased son or d•m

ghter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother ml father;·

S.S MunnaLal

S. s. Bajlcumar

Shah J.

' S Af11m1al4l v.

S. ). l111ji..uninr

(d) fourthly, upon the heirs of the father;

(e) lastly, upon the heirs of the mother;

(2) Xotwithstanding anything contained in sub.section (I),--,

(a) any property inherited by a female Hindu from her father or mother shall devolv<', in the absence of any son or daughter of the deceased (including the children of any predeceased son or <laughter) not upon the other heirs referred to in sub-section (I) in the order specified therein

but. upon the heirs c1f the father; and

(b) any property inherited by a

female Hindu from her husband or from her father-in-litw shall devolve, in the absence of any son or ditughter of the clcceasc<l (including the children of any

predeceased son or <laughter) not upon the other heirs referred to in su b.scction (I) in the order specified therein, but upon the

heirs of the husba.nd."

s., ction 16 which prescribes the' order of succession :ind manner of distribution among the heirs of a

Hindu female providPs by Jtule :

"Among the heirs specified in subHection (I) of section I:), those in one entry shall be preferred to tho-; e in any succeeding entry, and those include< 1 in tho s:ime entry sh:ill ia.ke simultaneouo I~."

Counsel for Rajkumar concedes, and in our judgment he is right in so conceding, that if the share declared by the preliminary decree in favour of Khilonabai. is property possessed by her at the date of her death, it should devolve upon her grandsons- Munnalal and Ramchand, to the exclusion of Raj. kumar adopted son of Padam Chand.

This Court in Gumalapara Taggina Matada Kotturuswami v. Setra Veeravva (1) held that "The word "possessed" ins. 14 is used in a broad sense and in the context means the state of owning or having in one's power". The preliminary decree decla, red that Khilonabai was entitled to a share in the family est:ite and the estate being with the family of which she was a member and in joint enjoyment, would be possessed by her. But counsel for, Rajkumar submitted that under the preliminary decree passed in the suit for partition the interest of Khilonabai in the estate was merely inchoate, for she had a mere right to be maintained out o! the estate and that her right continued to retain that charitcter till actual division was made and the share declared by the preliminary decree was separated to her: on her death before actual division the inchoate interest again reverted to the estate out of which it was carved.

Counsel relied upon the judgment of the judicial committee in Pratpamull Agarwalla v. Dhanabati Bibi (2) in support of his plea that under tho Mitakshara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the di vision of the property is actm Uy made, as she has no pre-existing right in the estate except a right of maintenance.

Counsel submitted that this rule of Hindu law was not affected by anything contained in.s. 14 of the Hindu Succession Act. By s. 14 (1) the Legislature sought to convert the interest of a Hindu female which under the

(I) [1959] l Supp. S.C.R. 968.

(2) (l9aS) L.R. Ga I.A. 33.

S.S. Munna Lal '.

S. s. Rajkumar

EhahJ.

I96t

:::i. s. A-11''1.na Loi

S S. Rojkumar

Sastric Hindu law would have been regarded a.a a limited interest into an :i.bsolute interest and by the explanation t.heretrJ gave to the expression "prop<\rty" th<• widest COlllh>tation .. Tho expression includes property acq11ired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenanee or arrears of maintenance, or by gift from :my perso11, whether a relative or not, before at or aft.er her marriage, or hy her own skill or exert.ion, or hy purclmse or by prescription, or in any other man11er what.so-evcr. Ry s, 14(1) manifostlv it. is intended to convert the interest which a Hindu fomal" h:tH in property however restricted the mtt.ure of that interest under the Sastrio Hinrlu law may be into absolute estate.

Prata p m11ll'.• case undoubtedly laid down that till

actu:tl division of the share decln.red in her favour by a prelimin11, ry decreP for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgm1'nt apply aftpr the ennt.ment of the Hindu Succussion Act.

The Aet is a codifying nnactmcnt, and has made far reachiu\( ch<mgcs in t.hrJ structure of the Hin"lu law of i11h••i'ita11ce, and succession.

The Act confers upon Hindu femaJes full rights of inheritance, and sweeps away the traditiona.l limita.tions on Ler powers of dispositions which were rowuded under . the Hindu law as inherent in her estat11. She is under the Act. regarded as a fresh stock of rlescent in respect of prop<>rty possessed

hy her at th,, time of hor den•:h. It is true that unde!" the ::i<it-ric Hindu law. the share given to ; t Hindu widow on partition between her sons or

her grands.ms w:i..q in lir.u of her right to maint.enancn.

Shu w<ts not "ntitlecl to claim partition.

But the Logislature by enacting t.h" Hindu Womens' Right to Property Aot, 1937 made a eignificant 1fopart11re in t.hat branch of the law: the Act gave a Hindu widow th., sam1J intoreat in tho property

3 S.C.R: SUPREME COURT REPORTS 435 ' . which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty 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 develop ment that in enacting s. 14 of the Hindu Succession Act, the Legislature merely intended tu declare the rule enunciated by the Privy Council in Pratap .mull' 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 part 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) x x x x x" 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 s. 14 occurs or in the phraseology used by the Ll'gislature to warrant the view that such a right decla red in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of s. H. In the light ('f the scheme of the Act and its avowed purpose it would be difficulr, without doing violence to the language used in the enactment, to assume that a right decland in property in favour of a person under a clecree for partition is not a right to property. If under a preliminary decree the rigbt in favour of a Hindu male be roi"arded as property the right declared in favo11r of a :&indu female must also be reardeq

S. S. Munna Lal v.

S. S. Rajkumar

Shah .I

8, S. Jfunno 1..l

8. 8. Rajk.,..,

Slid. J,

IY~2

Fth1uary 21.

as property. The High Court was therefore, in our judgment, in error in holding that the right dccla rc<l in favour of Khilonahai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Raj Kumar th1t it was not property within the meaning of s. 14 of the Act.

On that view of the case, by virtue of ss. 15 and l6 of the Act, the interest deolared in favour of Khilonabai devolved upon her sons Munnalal and Ra.mchand to the exclusion of her grandson Rajkumar. The decree passed hy the High Cuurt is therefore modifie<l in this respect and the decree passed by the trial Court restored. Having regard to the p11rtial success of the parties, there will be no order as to costs in this appeal and in the High Court.

Appeal partl, y allowed.

R. C. JALL

UNION OF INDIA

(B. P. SI:SIIA, c. J., K.

SUBBA RAO, N. RAJAGO PALA AYYA~GAH, J. R. '.\TuDHOLKAR and T. L.

VENKATARAMA AIYAR, JJ.)

Railu•a.y -- ,'\1litfo1 recorer.rJ of CP&.r1-limitation-Jlaint .. n.inrzbilit11 -- Co11signee f !iable--l1ulirtn Limitation Act, mos (LY of 1908), Art.;, 149, no;; o -- Con•litution of l11dia, Arts 265, .)72 - Ordinance Yo. 39 or 1944 -- Ordinance 6 of 1947, .•.. 1-•; oal Production Fund Ritl,., /!144, rr.6, .1, 3(a), 3(b) -Supreme Court Rule.•, 19W, as amended, 0. XI' lll, r.2.