SHYAMU GANAPATI JADHAV Vs. VISHWANATH GANAPATI JADHAV

JUDGEMENT

(1.) This appeal raises a short question under the provisions of the Hindu Women's Rights to Property Act 18 of 1937. The provisions of this Act have been construed judicially on several occasions and it has been frequently pointed out that in administering the provisions of this Act, Courts have to face some anomalous positions. The difficulty of intorducing reforms in Hindu law by piecemeal legislation has been very eloquently illustrated by the anomalies to which attention has been drawn judicially while construing the provisions of this Act. The point which we have to decide in the present appeal is an additional illustration on the same subject.

(2.) The point arises in this way. The present appeal is the result of a partition suit between Gan-pati and his three sons Shyamu, Shankar and Vishwa-nath. Ganpati had two wives Saguna and Laxmi. The present suit has been filed by Shyamu, plaintiff 1, Shankar, plaintiff 2, & their mother Saguna plaintiff 3. The father Ganpati, defendant 1, his other wife Laxmi, defendant 10, and Vishwanath. the son of Laxmi by Ganpati, defendant 2, were the contesting defendants to this suit. Ganpati had another son by Laxmi and his name is Balakrishna. He was impleaded as defendant 3 to this suit. He has, however, left the family by adoption and is .no lodger interested in making a claim for a share in the partition of the properties of his natural family. His presence on the record is, however, justified by the fact that he claims to be an alienee of some of the properties in suit from his father Ganpati. In this partition suit, the principal point of dispute between the parties was as to the quantum of share of each one of them and this dispute has been rendered more complicated by reason of the fact that two deaths have occurred in the family after the suit was instituted. The father Ganpati died pending the suit and. Saguna, his elder wife, died pending the present appeal. When Ganpati died, it became necessary to decide how the claims of Saguna and Laxmi should be determined in respect of the properties of the family. These two ladies occupied two different capacities. They were the widows of Ganpati and as such they were entitled to claim a share in the properties of the family under the provisions of the Hindu Women's Rights to Property Act. They were also mothers and as such under the general provisions of the Hindu law they were entitled to demand a share when the sons in the family were claiming partition against each other. In adjusting the shares of all the parties to the present dispute in the light of the dual capacity held by the two widows in the family, the two Courts have differed. . The trial Court held that the three sons were entitled to a one-fourth share each and the two widows to a one-eight share each. In other words, the trial Court took the view that the estate was originally divisible beween four claimants, the father and his three sons, and the share of the father would have to be divided amongst his two widows on his death. When the matter went in appeal, the lower appellate Court has held that the two plaintiffs would be entitled to a one-sixth share each in the property in suit. In regard to Saguna, he has held that she would be entitled to a one-sixth share. No doubt to this one-sixth share must be added one-twelfth share in the property which had not been alienated by Ganpati. In other words, according to his view, the share of the two widows happens to be larger than the share of each one of the three sons in the family. Defendant 2 was given by him one-sixth share and defendant 10, the mother of defendant 2, was likewise given a one-sixth share and to this share was added a one-twelfth share in the properties not alienated by defendant 1. The correctness of this view is challenged before us by Mr. Shanbhag and that raises the question as to the effect of the material provisions of the Hindu Women's Rights to Property Act.

(3.) it would be convenient to consider the provisions of this Act by themselves before attempting to correlate them with the rights which the two widows may claim as mothers under the general provisions of the Hindu law. Section 2 of the Act pro-des that, notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate. In other words, it would be reasonable to hold that, wherever the provisions of Section 3 of the Act apply, any other rule of Hindu law which would otherwise have applied would be inapplicable. If a case falls under Section 3 of the Act, it must be governed by the provisions of Section 3, and if there is anything else to the contrary in any rule of Hindu law or custom, the said rule or custom must be ignored as being superseded by the provisions of Section 3. The present case falls under Section 3, Sub-section (2), of the Act. This provision deals with cases where a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies and leaves behind him at his death an interest in a Hindu joint family property and it says that in such a case his widow shall, subject tp the provisions of Sub-section (3), have in the property the same interest as he himself had. The saving made by the provisions of Sub-section (3) merely amounts to the provisions that the estate which devolves upon a Hindu widow under tho earlier provisions of Section 3 should be regarded as a Hindu woman's estate and not as an absolute estate. This again is subject to the further proviso that in respect of this Hindu woman's estate, the widow shall have the same right of claiming partition as a inale owner. If the effect of reading Ss. 2 and 3 together is that in all cases which fall under Section 3 the provisions of Section 3 alone apply and no other provisions of the general Hindu law can be invoked, then it would not be difficult to hold that on the death oS Ganpati, his two widows Saguna and Laxmi wera entitled to claim their rights -under the provisions of Section 3 of the Act and not under any other provision of Hindu law. On that view, they would be entitled between them to the share to which Ganpati was entitled and Ganpati was obviously entitled to a one-fourth share in the properties in suit, so that on his death his two widows Saguna and Laxmi would be entitled to a half of Ganpati's share which means each ot them would get a one- eighth share in the suit properties.