- (1.) THESE are two civil regular first appeals arising out of the judgment of the Senior Civil Judge, Jaipur City, dated the 19th December, 1956. Appeal No. 20 of 1957 is by the defendant Smt. Anand Kanwar while appeal No. 34 of 1957 is by the plaintiff Smt. Chandrawati. We propose to dispose of both these appeals by a single judgment.
(2.) IN order to appreciate the points in controversy the following pedigree table will be useful: Brother's widow Smt. Sohan (died in 1948) = Smt. Mans Kanwar (died in 1951) = Nand Kishore Singh (died in 1934) = Smt. Sohan Kanwar (died in 1950) Chandrabhan Singh (died in 1920) Mahavir Singh (died in 1943) Balwang Singh (died in 1953) Widow Chandrawati (Plaintiff) Widow Anand Kanwar (defendant) The plaintiff Smt. Chandrawati (Mahavir Singh's widow) filed a suit, out of which these appeals arise, for partition against defendant Smt. Anand Kanwar (Balwant Singh's widow ). The suit was filed with respect to as many as nine properties, the particulars of which are given in para 2 of the plaint, but we are concerned in this litigation with five of them only. These are items Nos. 4 to 8 as particularised in the aforesaid paragraph, which are all situated in the State of Rajasthan. The plaintiff's case put briefly was that her father-in-law Nand Kishore Singh had made a registered will (Ex. C. 1) on the 28th November, 1929, and that as a result of this will her husband had become a tenant in common with the defendant's husband Balwant Singh and, therefore, she was entitled to a half share in each of these properties. The plaintiff's grievance was that she had many a time asked the defendant to get a partition of these properties done half and half but the defendant had been evading this demand and consequently she was compelled to bring this suit in the Court of the Senior Civil Judge, Jaipur City on the 16th March, 1954. The defendant resisted the suit. The principal contentions raised by her were that the plaintiff was not the married wife of Mahavir Singh at all ; that Nand Kishore Singh had not made any will, as alleged ; that item No. 7 of the properties had been purchased exclusively by her husband's father Chandrabhan and, therefore, Nand Kishore Singh had no right to make any will with respect to it ; and that in any case it was Balwant Singh, her husband, alone who was entitled to these properties by a right of survivorship. The trial Judge held that the marriage of the plaintiff Smt. Chandrawati with Mahavir Singh was established to the hilt; that the certified copy of the will dated the 28th November, 1929 was perfectly admissible in evidence; and that the will had been duly proved to have been the last will of the deceased Nand Kishore Singh. He also found that the property No. 7 was purchased by the defendant's father-in-law Chandrabhan Singh alone and, therefore, the plaintiff could not claim any partition with respect to it. As regards properties Nos. 5, 6 and 8, his finding was that the parties were entitled to a half share each therein by virtue of the will but so far as the property No. 4 was concerned the defendant alone was entitled to it. Aggrieved by this decision both parties have come up in appeal to this Court. We shall take up the defendant Smt. Anand Kanwar's appeal first. It may be pointed out at the very out-set that it was not disputed before us that with the exception of property No. 7 the rest of the properties, with which we are concerned in this litigation, were self-acquired properties of Nand Kishore Singh. The learned Advocate General, who argued the appeal on behalf of the defendant, also did not seriously dispute the finding of the trial Court that the marriage of the plaintiff Smt. Chandrawati with Mahavir Singh was fully established by the evidence on record. As for the will he also did not seriously assail its execution before us but what he contended was that the original will had not been brought on record and the secondary evidence that was produced in the shape of a certified copy thereof was not admissible according to law. The only other point that was raised before us in support of this appeal was that the trial Court had not correctly construed the will so far as the properties Nos. 5, 6 and 8 were concerned. According to the learned Advocate General, these properties had been left by the will executed by Nandkishore Singh to be joint between his son Mahavir Singh and grandson Balwant Singh and, therefore, Balwant Singh alone would be entitled to them by right of survivorship, Mahavir Singh having predeceased his father and therefore the plaintiff being the widow of Mahavir Singh could have no right to these. We propose to deal with each of the points in dispute now. So far as the admissibility of the certified copy of the will is concerned, we are clearly of the opinion that the trial Court was perfectly right in holding that such secondary evidence was admissible in the circumstances of the case. In the first place, it may be pointed out in this connection that the plaintiff had called upon the defendant to produce this will but the latter had failed to produce it. Then, when the plaintiff came into the witness-box she deposed that the original will, which had been executed by her father-in-law, was with her mother-in-law Mans Kanwar, and at the time of the latter's death in Jaipur she was at another village Narai where the parties admittedly held some other property and that the defendant or her husband naturally came into possession of the will in her absence. She also deposed that she had seen the original will with her mother-in-law Mans Kanwar more than once and that her husband had also spoken to her about it. As already stated, this will had been registered by the sub-Registrar at Kasganj. It was in these circumstances that the trial Court admitted the certified copy of the will by way of its secondary evidence, and we have no hesitation whatsoever in saying that it was perfectly entitled to do so. As it was only the admissibility of the will and not its execution that was challenged before us we need not go into the question of its execution in any detail and we would content ourselves by saying that there is abundant evidence on record to show that the will stands duly proved to have been executed by Nand Kishore Singh. This evidence consists of the statements of the scribe Brahma Dutta (P. W. 7) and the attesting witness Jainuladdin (P. W. 8) apart from the statement of the plaintiff Smt. Chandrawati herself. This evidence has been fully relied on by the learned trial Judge and we see no reason whatsoever to take a different view. This brings us to the question of interpretation of the will. The relevant portion of the will translated in English reads as follows: - "the small Haveli, which is known as Akadawala Makan, and a Nohra which is situated to the South in Johari Bazar, the garden and the pucca house situate in village Mandla that is, all these four immovable properties which are situated in Jaipur and which have been marked as Nos. 5, 6, 7 and 8 in the will shall remain in equal shares with my two wives Smt. Sohan Kanwar and Smt. Mans Kanwar, and my brother's wife Smt. Sohan Kali. These ladies shall maintain themselves out of the usufruct of these properties but should compelling necessity arise they shall have a right to sell any of these properties to fulfil their requirements. So long as these ladies are alive no one else shall have a right to any of these immovable properties and in case of the death of any one of them those surviving shall retain their possession over them without any disturbance but none of these ladies shall have any right to take any one in adoption or to declare any one as their successor or successors and on the death of these three all the four pro perties shall go to my son Mahavir Singh and grandson Balwant Singh in equal shares and remain in their possession and use. " Now, leaving aside the question of property No. 7, with which we propose to deal in the plaintiff's appeal and with respect to which the contention is that this property was the exclusive property of the defendant's father-in-law Chandrabhan Singh, as held by the court below, the question to decide is whether the defendant's husband Balwant Singh could alone claim that he was exclusively entitled to them by the right of survivorship. Our answer to this question in agreement with the trial Court is in an emphatic negative. As already stated these properties were the self-acquired properties of the testator Nand Kishore Singh and from the provisions that he made in the will with respect to them it clearly appears to us that he wanted to give a life estate therein to his two wives and his brother's widow and the remainder to his son and his grandson. He further stated that after all the ladies had died the son and the grandson surviving shall be entitled to these properties in two equal shares. Under these circumstances we are entirely unable to accept the contentions of the learned Advocate General that Balwant Singh and Mahavir Singh were joint tenants with respect to these properties and that any right of survivorship at all came into play on the death of either of them. On the other hand we are categorically of the opinion that as a coparcenary is purely a creature of law and cannot be created by act of parties both the son and the grandson were entitled to be tenants in common of these properties by virtue of the will of their ancestor Nand Kishore Singh and that being so the widows of both of them were entitled to an equal share to which their respective husbands were entitled as their heirs by succession. We hold accordingly. This disposes of the defendant's appeal. Turning next to the plaintiff's appeal, two questions have been raised before us, the first is that the finding of the trial Court that property No. 7 which is a shop situated in Johari Bazar in the city of Jaipur was the exclusive property of the defendant's father-in-law Chandrabhan Singh is incorrect and that this property was also the property of Nandkishore Singh to which both the plaintiff and the defendant would be entitled after the death of their respective husbands. The main support for this contention was sought from the recitals in the will itself. It is contended that Nand Kishore Singh, who was the head of the family, was the best person to know whether this was as much his property as the remaining ones which have been mentioned in the will, and that as he had intended that this property should also go half and half between his son and grand-son it must be taken to stand in the same category as the other properties in this class, namely, 5, 6 and 8, with which we have already dealt while dealing with the defendant's appeal. We are not impressed by this argument because whatever Nand Kishore Singh might have said in his will at the best amounts to an admission in his favour and was certainly not adverse to his interest. The value of such a recital, therefore, is very little, if at all it amounts to any thing. Apart from this the defendant has produced a sale-deed (Ex. A. 2) dated the 20th December, 1920 with respect to this property. This document clearly shows that her father-in-law Chandrabhan Singh had purchased it from one Chandmal of Bikaner for a sum of Rs. 3,299/ -. This sale-deed is in the name of Chandra Bhan Singh alone. Now, if this property was not to belong to that person exclusively there is no reason why the sale-deed was allowed by Nandkishore Singh to be executed in his ( Chandra Bhan Singh's ) name and at any rate we see no valid reason why the name of Nand Kishore Singh was not incorporated in it as one of the purchasers. A very strong inference, therefore, arises that this property belonged exclusively to Chandrabhan Singh and there is no satisfactory rebuttal of this on the side of the plaintiff. We are, therefore, in perfect agreement with the finding of the trial Court that this property belongs exclusively to the defendant and the plaintiff is not entitled to claim partition of it. The only other contention that was raised by learned counsel for the plaintiff was that the trial Court had fallen into a serious error in holding that the property No. 4 also belonged exclusively to the defendant. Now, the relevant recital in the will, translated in English, so far as this property goes (along with certain other with which we are not concerned in the present litigation) is as follows: - "as for the remaining properties Nos. 2, 3, 4 and 9 these shall remain the joint properties of my heirs and relations mentioned above. " It will be recalled that the heirs and the relations which have been mentioned in the next preceding paragraph were the testator's two wives Smt. Sohan Kanwar and Smt. Mans Kanwar and his son Mahavir Singh and his grandson Balwant Singh and his brother's wife Smt. Sohan Kali. This recital to our mind clearly means that all these five persons were to hold the property No. 4 (leaving out others with which we have no concern) as tenants in common and not as joint tenants. We say so because it seems to us that it is well established that where a gift or bequest is made to two or more persons who are not members of a coparcenary without specification of shares, such persons would take the property gifted or bequeathed to them as tenants-in-common. (See 23, Indian Appeals, 37 ). At one stage learned Advocate General argued before us that this principle would not apply here because the female relations named above as much as the son and the grandson of Nand Kishore Singh would be members of a coparcenary, but the position is much too well established to admit of any doubt or dispute that although a female can be a member of a joint Hindu family she cannot possibly be a member of the coparcenary, which is a peculiar feature of the concept of coparcenary as known to Hindu law. That being so, there can be no escape from the conclusion that, all the five persons named above would be entitled to property No. 4 as tenants-in-common. In this view of the law, we have no doubt whatever that Mahavir Singh and Balwant Singh would be entitled to a one fifth share each with respect to property No. 4 and that this cannot go exclusively to the defendant as held by the court below. The further question that remains to decide is what happens to the remaining three fifth share in this property. Learned counsel for the plaintiff strenuously contended before us that by virtue of the provisions of the Hindu Women's Right to Property Act, which had come into force on 24th September, 1947 in the former State of Jaipur, from which part of Rajasthan this case arises, the plaintiff being a widow of a pre-deceased son of Nand Kishore Singh would be entitled to an equal share with his grandson Balwant Singh. It seems to us that this contention is without any force. For on a critical analysis of the provisions of this Act we are inclined to hold the opinion that the Act is attracted into application only when there is a question of a direct succession to a male Hindu dying intestate and leaving separate property and not otherwise. Such a situation, in our opinion, does not possibly arise here, for Nand Kishore Singh had died admittedly in 1934, and Smt. Sohan Kanwar and Smt. Mans Kanwar died respectively in 1948, 1950 and 1951. When these women died, therefore, there was hardly any question of succession arising respecting the estate of a male Hindu but the succession would relate to the estate of these widows. It further seems to us that the interest which these women received in the property, with which we are concerned, was stridhana. Reference may be made in support of this view to paragraph 126 of the Principles of Hindu Law by D. F. Mulla (2th Ed.) which says that property given or bequeathed to a Hindu female, whether during maidenhood, (coverture, or widowhood) by her parents and their relations, or by her husband and his relations, is stridhana according to all the schools, except that the Dayabhaga does not recognize immovable property given or bequeathed by a husband to his wife as stridhana. It is nobody's case here that the parties belong to the Dayabhaga Law of Hindu law. It is in these circumstances that the question arises who would be the heirs of Smt. Sohan Kali, Smt. Sohan Kunwar and Smt. Mans Kunwar they they died in 1948, 1950 and 1951 respectively. We have already adverted to above that the Hindu Women's Right to Property Act, 1937 as applicable to the State of Jaipur, would not come to the aid of the plaintiff in this case arid in support of this view we would invite reference to Lakhan Lal Puri vs. Richu Mian (1 ). The facts in that case were as follows - A Hindu male died intestate before the Hindu Women's Right to Property Act came into force leaving behind him his widow and his son's widow. His widow died after the Act came into force, meanwhile his son's widow had made certain transfers of certain properties in favour of third parties. The next male reversioner filed a suit for confirmation of possession, or alternatively for recovery of possession. It was in these circumstances that the question arose 'whether the son's widow had any right to the said properties under the Act of 1937. This question was answered in the negative and it was held that it was only the inheritance to the property left by a Hindu male that was to be governed by the provisions of this Act, and that the word 'hindu' used in different sections of the Act does not include a Hindu female also. It was further held that the Hindu Women's Right to Property Act would not be applicable if the properties in the suit had been stridhana properties of the widow of the last male owner. The correct position in law, therefore, clearly seems to us to be that the propositus in the case of succession to the three widows named above being not a male Hindu, the Hindu' Women's Right to Property Act would not be rightly attracted into application. Now, let us see how this position actually works out in the case of each one of the three Women. When Smt. Sohan Kali died in 1948 she admittedly left behind no issue of her own and that being so her stridhana would go to the heirs of her husband in the order of their succession to him, and in the event of no such heir it would go to her blood relation in preference to the Government as bona vacantia. (See paragraph 147 of Mulla's Hindu Law, 12th Edition) Now, as for her husband's heirs Balwantsingh, defendant's husband, would be an heir but not the plaintiff who is Mahavir Singh's widow. The two other women who survived Smt. Sohan Kali, Smt. Sohan Kanwar and Smt. Mans Kanwar would also not be her heirs. In this view of the matter, Sohan Kali's l/5th share would undoubtedly go to Balwant Singh to the exclusion of the plaintiff. Balwant Singh would thus be entitled to 2/5th share in property No. 4 on the death of Smt. Sohan Kanwar and Smt. Mans Kanwar in 1950 and 1951 respectively. Balwant Singh would succeed to the shares of each one of these ladies as being their grandson or step grandson and the plaintiff would again be excluded. Learned counsel for the plaintiff contended, however, that on the death of either of these ladies, and, as it is not known whether Balwant Singh was a real grandson of any one of them or was merely a step grandson, the plaintiff would also be entitled to a share in the estate left behind by these two ladies on the ground that the succession to them will have to be governed on the footing that their husband died either in 1950 or 1951 and on that principle the plaintiff being a predeceased son's widow would also be entitled to a share in the estate left behind by the two widows of Nand Kishore Singh. In elaborating this argument learned advocate again relied on the provisions of the Hindu Women's Right to Property Act, 1937 as applicable to the State of Jaipur. This argument, is just a rehash of the one which we have already discussed and rejected above. What we should like to emphasise here even at the cost of repetition is that on the deaths of Smt. Sohan Kanwar and Smt. Mans Kanwar the question of succession that arose was not to a male Hindu but to a female, and, therefore, the Act of 1937 cannot be attracted at all. Besides the question is about the succession to the stridhana properties of both these ladies. Again it may be that in order to determine the question as to who are the heirs of the stridhana properties of these two ladies it may be necessary for us to decide the question with reference to their husband Nand Kishore Singh's heirs, but it does not mean that the dispute is about the succession to his (Nand Kishore Singh's) estate. We should like to invite attention to a Bench decision of the Madras High Court in Krishnaswami Chettier Vs. S. Sankili Chettiar (2), in which it was as held that the doctrine of representation which permits the son, grandson and great grandson as a single ground in the case of succession to the property of a male is not applicable to determine the heirs in dealing with stridhana succession. It was also held that the rule of representation which is founded upon religious efficiency as also on the theory of unobstructed heritage and of survivorship prevailing between these co-heirs has no application to stridhana succession and that in the latter case it is propinquity and the rule that the nearer excludes the more remote that governs the succession. It was further held that the argument that as the succession after the husband is enjoyed as if the property belonged to the husband himself and the succession should be determined on such a fiction, cannot be accepted, the reason being that stridhana property is not the coparcenary property as between the grandson and the great-grandson of the husband, and further because the fact cannot be lost sight of that the propositus in such a case is really the woman and it is to her that succession is traced and kinsmen of the husband inherit her property because they are also her kinsmen. In this view of the law, therefore, our conclusion is that so far as property No. 4 is concerned while the plaintiff would be entitled to 1 /5th of the share therein which went to her husband as a tenant-in-common on Nand Kishore Singh's death under the will and to which she would be entitled on his death, the remaining 4/5th would go to the defendant by succession. We hold accordingly. This disposes of the plaintiff's appeal. The net result is that the defendant's appeal fails and is hereby dismissed while the plaintiff's appeal is partly allowed to the extent indicated above. In other words, in addition to the decree which has been granted in her favour by the court below she would also be entitled to 1 /5th share in property No. 4. Having regard to the fact that the parties are close relations we would leave them to bear their own costs throughout; . ;