Bhagirathibai Chandrabhan Nimbarte & Anr. Vs. Tanabai (deed) by LRs. & Ors. AIR 2013 BOM. 99.
A Hindu joint family consisting of Vithoba, his wife Radhabai, son Chandrabhan and daughter Tanabai, owned and possessed the ancestral property. Vithoba died intestate on 23-01-1934, leaving behind him his widow Radhabai, son Chandrabhan and daughter Tanabai.
A Regular Civil Suit filed by the respondent Tanabai, claiming a declaration that she is the owner of half portion of the suit property, being the daughter of one Vithoba Nimbarte, who was the owner. The Trial Court, by its judgment and order dated 31-12-2001, has partly decreed the said suit and the declaration is granted that the plaintiff is the owner of 1/3rd share in the suit property. Accordingly, a decree for partition of the suit property has been passed and an enquiry into mesne profit has been ordered.
The Appellate Court held that after the death of Vithoba, his widow Radhabai had a right of maintenance. Hence, after coming into force of section 14 of the Hindu Succession Act, she became the absolute owner of half share in the suit property of Vithoba. After the death of son Chandrabhan, his widow Bhagirathibai was entitled to get the property as limited owner as per the provisions of section 3 of the Hindu Women’s Right to Property Act, as Chandrabhan had no Class I heir. According to the Appellate Court, Radhabai and Bhagirathibai were in possession of the suit property and by virtue of section 14 of the Hindu Succession Act, 1956, they became the owners of half portion each of the suit property. Upon the death of Radhabai, Tanabai and Wanmala shall become the owners of 1/4th share each in the suit property.
Hence, the first question is about the rights of widow Radhabai and daughter Tanabai in the ancestral property after the death of Vithoba. The son Chandrabhan died intestate in the year 1952, leaving behind him his mother Radhabai, sister Tanabai, widow Bhagirathibai and daughter Vanmala. Hence, the other question is about the rights of the heirs of Chandrabhan to succeed the ancestral property after his death. The Hindu Succession Act, 1956, came into force from 17-06-1956, and hence the last question is whether it confers any right to property upon the mother Radhabai and sister Tanabai in the ancestral property.
A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage and becomes a member of her husband’s family. A joint or undivided Hindu family may consist of a single male member and widows of deceased male members. The existence of at least one male member is essentially for constituting a joint family with other members. A Hindu coparcenary is a much narrower body than the Hindu joint family. The coparcenary not only consists of father and sons, but also grandsons, great-grandsons of the holder of the joint family property for the time being. It includes only those persons who acquire by birth an interest in the joint or coparcenary property.
The property inherited by a Hindu from his father, father’s father or father’s father’s father is an ancestral property, whereas the property inherited by him from other relations is his separate property. If a Hindu inherits the property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited and the coparcenary consists of a father and a son. Even a wife, though she is entitled to maintenance out of her husband’s property and has, to that extent, an interest in his property, is not her husband’s coparcener, nor is a mother a coparcener with her son, neither a mother-in-law with her daughter-in-law. Undisputedly, in the present case, there was no partition between Vithoba and his son Chandrabhan, when Vithoba was alive. Vithoba died intestate on 23-01-1934.
Here, in the present case, after the death of Vithoba on 23-01-1934, his undivided interest in the coparcenary property devolved upon the sole coparcener Chandrabhan by survivorship. Hence, Chandrabhan became the absolute owner of the entire property, and neither Radhabai, the widow of Vithoba, and the mother of Chandrabhan, nor Tanabai, the daughter of Vithoba and the sister of Chandrabhan, acquired any right in the coparcenary property.
As per the provision of section 3(1) of the Hindu Women’s Right to Property Act, when a Hindu governed by the Mitakshara School of Hindu Law dies intestate leaving separate property, his widow shall, subject to the provision of s/s. (3), be entitled in respect of the property in respect of which he dies intestate to the same share as a son. In the present case, there was no partition between Vithoba and his son Chandrabhan prior to the death of Vithoba on 23-01-1934. Hence, though Vithoba died intestate, he did not leave any separate property. It was only a coparcenary property in the hands of the son Chandrabhan after the death of Vithoba. Hence, section 3 of the said Act will not be attracted so as to make Radhabai entitled to even a limited interest in the property in question.
The next question, which falls for consideration, is the effect of coming into force of the Hindu Succession Act, 1956, with effect from 17-06-1956.
In the present case, Chandrabhan died before coming into force of the said Act, and hence his mother Radhabai did not possess any vestige of title. The mere fact that Radhabai was in possession of the suit property along with Bhagirathibai, the widow of Chandrabhan, after 1952, was not sufficient to attract the provisions of section 14 of the Hindu Succession Act. The section is not intended to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser, as has been held by the Apex Court in Eramma’s case, cited supra.
