Mallick, J. - (1.) This is an application for addition of a party in a partition suit and a very interesting point of law on the Hindu Succession Act, 1956 has been canvassed.
(2.) The suit in which the present application is made is a suit for partition of the estate left by Sashi Bhusan Roy Chowdhury, who died intestate in 1922, leaving him surviving Indu Bhusan, a son by his pre-deceased wife, and a second wife and three sons by her. We are not concerned in this application about the second wife and her sons. Indu Bhusan died in 1946, leaving him surviving his widow Sarajubala, a son Ramani Bhusan and a daughter Bidyutlata. The present suit for partition was instituted on 24-7-1953. On 10-2-1956, a preliminary decree for partition was passed by me, declaring the shares of the parties and appointing a Commissioner of Partition to work out the preliminary decree. The preliminary decree declares Sarajubala's share In the joint properties to be that of a Hindu widow as prescribed by Hindu Law and directs that the share to be allotted to her be held by her as a Hindu widow during her natural life. On 17-6-1956, the Hindu Succession Act came into force. The point raised by Mr. Somnath Chatterjee, learned counsel for the petitioner Bidyutlata, is that under Section 14 of the said Act, Sarajubala, on the date of the Act coming into force, became entitled to her share in absolute title and not as a Hindu widow during her natural life. On 5-3-1957, Sarajubala died. On Sarajubala's death, Bidyutlata and Ramani Bhusan, as Sarajubala's heirs, have become equally entitled to the property left by her. On the basis of this title, the present notice has been taken out by Bidyutlata for herself being added as a party and for determination of her share in the property in suit and for passing of a new preliminary decree; in the (alternative, for rectification of the preliminary decree already passed. Section 14, Hindu Succession Act. 1956 reads as follows : "14. Property of a female Hindu to be her absolute property. -- 1. Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation. -- In this subsection, "property" includes both movable and immovable 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, or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. 2. Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a 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." Mr. Chatterjee contends, in the first place, that In terms of Sub-section (1) of Section 14, Sarajubala, though was in possesion of the property as a limited owner prior to the passing of the Act, became a full owner thereof on the Act coming into force on 17-6-1956. It cannot be disputed that if Subsection (1) of Section 14 of the Act applies, Sarajubala would be entitled to her share in absolute title. But the question is, having regard to Sub-section (2) of Section 14, can it be held that Sub-section (1) applies to the instant case ? Sub-section (2) expressly states that Sub-section (1) shall not apply to any property acquired under a decree of a civil Court which prescribes a restricted estate in such property. The preliminary decree passed in this suit does prescribe a restricted estate to Sarajubala, that is, "a Hindu widow's estate to be held by her during the term of her natural life." Mr. Chatterjre. argues that the instant case is not hit by Sub-section (2), because, though the preliminary decree prescribes a restricted estate to Sarajubala, it cannot be said that Sarajubala acquired the property under the decree. According to him, a distinction should be made between 'property acquired' under a decree with restriction and the property declared to be enjoyed under the Hindu Law which imposes certain restrictions. In the instant case. Sarajubala did not acquire the property under the preliminary decree, but acquired the property by inheritance and the preliminary decree does nothing more than declaring her share in the property under the provisions of the Hindu Law then in force.
(3.) It is argued, in the second place, that after passing of the Hindu Succession Act, 1956, the Hindu Women's estate has become an absolute estate, though prior to mat date it meant a restricted estate. Therefore, on a construction of the decree itself I should hold that Sarajubala has acquired absolute title in the property allotted-to her under the decree. In the submission of Mr. Chatterjee, the other construction will run counter to the whole spirit of the Act of 1956. Again, the Legislature cannot have intended to make the section inapplicable simply because of the passing of a preliminary decree declaring the rights of a Hindu widow acquired by inheritance.;