Modi, J - (1.) THIS second appeal has been placed before this Bench on a reference by one of us sitting singly, as it raises an important question relating to the applicability of sec. 214 of the Jaipur Seccession Act, 1943, (Act No. LI of 1943) which for all practical purposes is in the same terms as sec. 214 of the Indian Succession Act, 1923 (No. XXXIX of 1925 ).
(2.) THE meterial facts leading up to the present reference may shortly be stated as follows. On the 14th July, 1947, Udai Prakash husband of Mst. Chhotki, the appellant before this Court, filed a suit against the defendant respondent for the recovery of Rs. 675/- on the footing of a Khata dated the 14th July, 1944, for a sum of Rs. 800/- which is alleged to have been executed by the latter in favour of the said Udai Prakash. It was admitted by the plaintiff that a sum of Rs. 125/- had been repaid by the defendant to the former on account of the khata in question, with the result that the balance of Rs. 675/ - only remained outstanding against him. THE defendant resisted the suit. He denied both the execution of and the consideration for the khata. THE plaintiff Udai Prakash died on the 29th August 1949 during the pendency of the suit and his widow Mst. Chhotki was brought on the record as his legal representative on the 28th November, 1949. THE trial court decreed the suit against the defendant, as prayed, by its judgment and decree dated the 27th February, 1951. THE defendant carried an appeal from this decree to the District Judge, Jaipur City. A legal objection was for the first time raised before the learned District Judge that no decree could be passed in favour of the widow of Udai Prakash unless she produced a succession certificate with respect to the debt in question as required by Sec. 214 of the Succession Act. This objection eventually prevailed with the court below and the result was that the plaintiff's suit was dismissed. It may be mentioned at this place that that Court had allowed time to the appellant here to produce a succession certificate but she did not care to avail herself of the opportunity afforded to her. It is against this dismissal that the present appeal has been brought to this Court. It is further necessary to mention in this connection that the Hindu Women's Rights to Property Act, (No. 38) of 1947, which so far as its substantive provisions are concerned is an exact copy of the Hindu Women's Rights to Property Act (No. 18) of 1937 as amended by Act No. 11 of 1938, and which was applicable to British India as it then was, was brought into force in the territory of the then State of Jaipur on the 3rd October, 1947. THE suit out of which this appeal arises was originally filed in the court of a Munsiff of that State and the plaintiff Udai Prakash, as already stated, had died on the 29th August, 1949, after the coming into force of the Jaipur Act of 1947 to that area. It is in these circumstances that the question arises whether a widow who is governed by the Jaipur Act of 1947 which is an exact counter-part of the Act of 1937 is entitled to obtain a decree against another with respect to a debt which the latter owed to her husband without producing a succession certificate as required by sec. 214 of Succession Act. There is a divergence of judicial opinion on this point among the various High Courts in India and there is no decision of our own Court which deals with the point, and, therefore, this case has been referred to a larger bench. The relevant portion of sec. 214 of the Act of 1943 reads as follows - "214 (1) No Court shall - (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, (b ). . . . . . . . . . except on the production, by the person so claiming, (ii ). . . . . . . . . (iii) a succession certificate granted under Part X and having the debt specified therein, or (iv ). . . . . . . . . (v ). . . . . . . . . (2) The word "debt" in sub-sec. (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purpose. " Secs. 2 to 5 of the Act of 1947 are in the following terms - "2. Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of sec. 3 shall apply where a Hindu dies intestate. 3. (1) When a Hindu governed by the Dayabagh School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other School of Hindu Law or by customary law dies intestate leaving separate property, his widow or, if there is more than one widow, all his widows together shall, subject to the provisions of sub-section (3), be entitled in respect of which he dies intestate to the same share as a son ; Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son son's if there is surviving as son or son's son of such predeceased son; Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son. (2) When a Hindu governed by any school of Hindu Law other than the Dayabhaga School or by customary Law dies having at the time of his death an interest in a Hindu joint family property his widow shall, subject to the provisions of subsection (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provision of this section shall be the limited interest known as a Hindu woman's estate provided however that she shall have the same right of claiming partition as a male owner. (4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Jaipur Succession Act, 1943, applies. 4. Nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act, For the purpose of this Act, a person shall be deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. " It will be seen that these sections are an exact reproduction of like sections of the Act of 1937 as amended by the Act of 1938 except that in sub-sec. (4) of sec. 3, the phrase "indian Succession Act, 1925" is substituted by the phrase "jaipur Succession Act, 1943". The position of the widow of Udai Prakash who was admittedly subject to the Mitakshara School, therefore, was that when the latter died intestate, then under sub-sec. (1) of sec. 3 of the Act of 1947, she was entitled in respect of her husband's separate property to the same share as a son, and, therefore, in the absence of a son, to his entire property. It may further be noted that under sub-sec. (3) of sec. 3, the interest which so devolved on her was a Hindu Woman's estate though a further right was given to her that she had the same right to claim partition as the male owner whose estate devolved on her. 5. The short question which then arises for determination is whether a widow who was entitled to the benefit of the Jaipur Act of 1947 can be said to have received the estate of her deceased husband on succession, that is, by inheritance within the meaning of sec. 21 (4 of the Jaipur Succession Act which is, for all practical purposes in the same terms as the Indian Succession Act. As to this question, there are decisions on both sides of the line. These may be succinctly classified somewhat like this. One view is that under the Hindu Law,there are only two modes of devolution of property : (1) survivorship, and (2) succession. The rule of survivorship is applicable in the case of a joint family property while the rules of succession apply to property held otherwise by the last owner. It may further be pointed out that while the Mitakshara system recognises both these modes, the Dayabhag recognises succession only. It is unquestionable that a Hindu widow is not a member of the coparcencry, and, therefore, she is not entitled to receive any property by the right of survivorship. That being so, whatever she gets can only be by the other mode namely inheritance or succession. It must follow, therefore, on this view that the Hindu widow before she can obtain a decree with respect to a debt owing to her husband must obtain a succession certificate with respect to it. This view has been adopted in a number of cases and its best exposition is to be found in Jadaobai Vs. Puranmal (l) and Siveshwarprasad vs. Harnarain Mal (2 ). The other cases adopting the same view are Saradabai vs. Subbarama (3) and Rajendrabati vs. Mungalal (4) and Kedarnath vs. Radha Shyam (5 ). In Jadaobai vs. Puranmal (Supra) which is a case practically on all fours with the present one, it was held by the Nagpur High Court that on the death of a Hindu, who had obtained a money decree, his widow obtained the right to execute the decree on succession, and, therefore, a succession certificate was necessary to the extent of her interest in the property. The ratio of the decision is contained in the following extract of the judgment - "the Act 19 of 1937, was enacted with a view to giving better rights to women in respect of property. There are no words in the Act by which she can be deemed to be a coparcener and the interest which devolves on her is declared to be a 'hindu woman's estate'. It is thus clear that she does not take the property by survivorship. Consequently it has to be held that she takes it by succession, and by succession she takes a limited estate known as the " Hindu women's estate ". A little later, the learned Judges pointed out that "survivorship having been ruled out the only other mode by which she will be clothed with the rights of her husband in the property, though to a limited extent, would be by succession or inheritance if, she claims under the Hindu Women's Rights to Property Act. " The view taken by Horwill, J. in Nataranjan Chettiar vs. Perumal Ammal (A. I. R. 1943 Madras 246) on the other side of the line to the effect that the widow obtains her rights as a sort of a survival of the husband's person in her was definitely discent-ed from, and it was thought that the only alternative to devolution by survivorship by succession, and there could be no other midway course. Fazal Ali C. J. of the Patna High Court as he then was who delivered the Bench decision in Sliveshwar Prasad vs. Harnarain Mal (Supra) re-iterated the same view when he held that if the widow did not get the interest by survivorship, then she must be held to have acquired it as an heir. The question in this case did not relate to the attractability of sec. 214 of the Succession Act but was slightly different namely, whether the estate of a husband could be proceeded against by a creditor of his in the hands of the former's widow even though it was an undivided interest in the joint family property. In coming to this conclusion, the learned Judges relied on an earlier single Judge decision of the Madras High Court in Saradambal vs. Subharama (Supra) in which it was held that though the interest taken by the widow was a limited one, the inheritance vested in her absolutely though with restricted right of alienation, and, therefore, the property taken by the widow must be held to be liable for the payment of her husband's debt and capable of being attached for that purpose. The Patna High Court seems to have adhered to this view in Kedar Nath Vs. Radha Shyam (Supra) and Rajendrabati Vs. Mungalal (Supra ). The latter was a case in which the applicability of sec. 214 was directly in issue, and it was held that a suit by a widow of a deceased coparcener in a joint Hindu family for recovery of money due upon a hand-note executed in favour of her deceased husband was not maintainable unless she obtained a succession certificate under sec. 214 of the Succession Act. The reasoning was that under S. 3 of the Act of 1937, the widow acquired the interest of her deceased husband in the family property not by survivorship but as his heir. This is so far as the first view is concerned. The other view is that the nature of the interest received by the widow under S. 3 of the Act of 1937 is not by virute of a right of heirship as such. Under the ordinary Hindu law, a Hindu governed by Mitakashra was not an heir with respect to the joint family property at all. She was also not an heir with respect to the separate property of her husband and she could receive the separate property only in the absence of a son, grandson or great-grandson, so that in either of the two cases mentioned above, she had only a right of maintenance. By the Act of 1937, her rights were doubtless sought to be improved as the preamble of the Act indicates. Even so, it cannot be said that she was given the right of inheritance as such. Because if that was so, under S. 3 (2) of the Act, the joint family would no longer remain as before, and a disruption of the joint family status would clearly come into play. It is true that a widow under the new dispensation could ask for partition, and she could obtain her husband's share by that method and this seems to have given rise to a serious question whether such share would not revert back to the co-parcenery on her death and according to one opinion held in the matter, it would; (see Bhagorai Vs. Bhaiyalal (6) in this connection) though another view appears to have been taken in Parappa Vs. Nagamma (7 ). Be that as it may, it is accepted on all hands that the widow does not become a fresh stock of descent in her own right. Another strong consideration that seems to have been relied on in favour of this view is that if the widow got the right by inheritance, she should be entitled to a definite share in the family property. But that is clearly not so under the scheme envisaged in S. 3 (2) of the Act. The coparcenary goes on as before, and her right fluctuates just as her husband's if he was alive, according to births and deaths in that family, until, what it happens to be, when she claims her right asking for partition or otherwise. On this view, therefore, while it is accepted just as in the other view that the widow does not get any right by survivorship, it is not accepted that, that being so, the only other method by which the property devolves on her is by inheritance or succession and the position has been summed up some times by saying that what the widow gets is by way of "survival of the husband's persona in the wife, giving her the same rights as her husband had except that she can alienate property only under certain circumstances" and at other times by saying that because the widow admittedly does not obtain her rights by survivorship, it does not necessarily follow that she can only get it by inheritance and that the correct position in law was that she was invested with special rights under the Act of 1937 which were neither by survivorship nor by inheritance but by a mode of devolution midway between the two, which was akin to the one or to the other but was not precisely any one of them. The sum and substance of this view is that the widow does not obtain the estate of her husband by inheritance or by succession but by a special right vested in her by a special statute. We have been referred to a number of cases supporting this view, which are mostly under S. 3 (2) of the Act of 1937. But we have been able to lay our hands on at least one case reported as Venketalakshmi Ammal Vs. The Central Bank of India, Ltd. (8) which arose under first part of S. 3 and which took the same view as in the other cases. The earliest decision which has taken this view is by Horwill, J. in Natarajan Chettiar Vs. Perumal Ammal (9 ). This was also a case in which the applicability of S. 214 of the Succession Act directly arose for decision, and the learned Judge held that although it was true that the widow did not obtain the right given under S. 3 of the Act of 1957 by survivorship, it did not follow that she got it by inheritance and that the effect of sec. 3, clauses (2) and (3) might be regarded as a survival of the husband's persona in the wife, giving her the same rights as her husband had subject to certain restrictions and that as the widow did not get her right on succession, no succession certificate was necessary. The Madras High Court seems to have more or less consistently taken this view ever since, and reference may particularly be made to the decision of Rajamannar C. , J. and Ayyar, J. in Subba Rao Vs. Krishna Prasadam (lo) where after relying on a text form Brihaspathi to the effect that - "when a person dies and his wife survives, half his body survives in her; when half the body of a person survives, how can another person take his property ?" The learned Judges observed that that being so, there could be no question of her succeeding as an heir to her husband and approved the view expressed by Horwill, J. in Natarajan Chettiar Vs. Perumal Ammal (Supra) and expressed their dissent from the view taken in Jadaobai Vs. Puranmal referred to above.
(3.) THE same view was accepted by another Division Bench of the Madras High Court in Rathinasabapathy Vs. Saraswathi Ammal (11 ). We should like to refer to one more Madras case, Venkatalakshmi Ammal Vs. Central Bank of India to which we have adverted above and which arose under sec. 3 (1) of the Act of 1937. In this case, the widow wanted to claim the amount held by her husband under "home Savings Safe" account in the Central Bank of India and a question arose whether it was necessary for her to produce a succession certificate before she could obtain a decree against the Bank. It was held that the widow did not get her interest either by survivorship or by inheritance but it was a special statutory right with which she had been invested under the Act solely by reason of her being the widow of her husband. It was, therefore, held that it was not necessary for the widow to obtain a succession certificate under the Succession Act. Another decision to which we should very much like to refer in support of this view is a Bench decision of the High Court of Bombay in Nagappa Narayan Vs. Mukambe (12 ). After an elaborate discussion of the provision of the Act of 1937 and a number of cases bearing thereon, Bhagwati, J. who delivered the judgment of the Bench held that a Hindu widow under sec. 3 (2) thereof got an interest which was neither by survivorship nor by inheritance but which was one specially created under the terms of the Act. As the learned Judge put it, it is not necessary to classify the right which devolves on the Hindu widow as falling in either of the two categories namely survivorship or inheritance and say that if it is not survivorship, it can only be inheritance. His Lordship further observed as follows : - "it may not be survivorship ; it may not be inheritance ; it can be a mode of devolution which is specially created under the terms of the Act : - - Reference may next be made to a decision of a learned single Judge of the Calcutta High Court in Ratan Kumari Vs. Sunder Lal (13 ). It was also held in this case that under the Act of 1937 a Hindu widow as distinguished from a pre-deceased son's widow, with whose case we are not concerned here, does not get her interest in the joint family property either by way of survivorship or inheritance but it was a special kind of interest which was the creation of statute. The Orissa High Court appears to have taken the same view it Gangadhar Vs. Subhashini (14) disagreeing with the Nagpur and Patna views referred to above and the same view followed in Harekrishna Das Vs. Jujesthi Panda (15 ). The case reported in Abhina Sahu Vs. Daitari Sahu (16) directly relates to the applicability of sec. 214. In that case, a pro-note was executed in favour of the Karta of a joint Hindu family and on his death, it was held that money was due to his widow not by succession but by Survivorship, and, therefore, it was not necessary that she should obtain a succession certificate before she could proceed to realise the amount by a suit. With respect, we are not prepared to accept the view that the right to sue to the widow would go by survivorship although we are prepared to come to the same conclusion by holding that the right of the widow under the Act of 1937 was a special statutory right which did not amount to inheritance, and, therefore, no succession certificate was necessary. Again the Andhra High Court in I. L. T. Development Ltd. Vs. K. Kotayya (17) held that a Hindu widow having a right to money due to her husband was competent to sue without producing a succession certificate under sec. 214 of the Succession Act. This is how the two rival views stand. If we may say so, with respect, we have examined them for ourselves with all the care and attention which they deserve. The question raised before us is not free from difficulties. But having regard to the preponderance of judicial opinion which seems to exist, at the present day, in the various High Courts in our country, we consider it preferable to adopt the majority view. As we have pointed out above, the Madras, Bombay, Calcutta, Andhra and Orissa High Courts are on one side, and Nagpur and Patna are on the other. Even the Patna High Court in its latest decision in Sabujpari Vs. Satrughan Isser (18) seems to have veered round to the view that the right which the widow gets under the Act of 1937 is not by way of either survivorship or succession, but that she gets it as representing her husband himself, and that it is a statutory right; although it may be pointed out that in arriving at this conclusion the attention of the Bench does not seem have been invited, nor has it referred to the previous bench decisions of that Court with which we have dealt above. As for the principle on which we should like to rest our decision, with all respect, we would say that a Hindu widow whose case falls to be governed by the Act of 1937 or a like Act occupies a special position with respect to the estate left by her husband, which neither logically nor completely accords with that of being a coparcener or an heir of her deceased husband and which cannot, therefore, be equated with succession without more, within the meaning of sec. 214 of the Succession Act, and that she has been invested with a special position by statute. We further wish to emphasise that, in any view of the matter, the right which she gets is limited or what is called a woman's estate which perhaps cannot be accepted to be an absolute estate which she would get if the ordinary mode of succession or inheritance applied to her, and whatever interest she gets cannot descend on her own heirs but would revert back either to her husband's heirs or the copercenary as the case may be on which question we are not called upon to express any precise opinion in this case. That being so, we are disposed to hold the view that the widow in this case is not entitled to the property of her husband by succession within the meaing of sec. 214 of the Succession Act. From this it must further follow that it was not necessary for her to produce a succession certificate as a sine qua non for a decree being awarded in her favour with respect to the recovery of the debt due to her husband from the defendant respondent. We hold accordingly. We may perhaps add that the decision to which we have come here cannot obviously apply to a widow under the Hindu Succession Act 1956. ;