- (1.) THE suit out of which this second appeal arises was instituted by Jagannath for a declaration that the sale deed dated 1st May, 1951 executed by Mst. Gaindi defendant No. 2 in favour of Kalyandas in respect of properties mentioned in paragraph 2 of the plaint was null and void and was inoperative against him. It was alleged that the plaintiff and Kanahiyalal deceased husband of Mst. Gaindi were real brothers being the sons of Mahadev and lived in jointness till Kanahiyalal's death after which the plaintiff inherited the entire ancestral property by survivorship and Mst. Gaindi was entitled to a right of maintenance only and had no right to sell even half the property in favour of Kalyandas. It was alleged that the defendant No. 1 was a near relative of Mst. Gaindi and the sale in his favour was bogus and collusive.
(2.) DEFENDANT No. 1 contested the suit and averred that the sale deed was effected by Mst. Gaindi for legal necessity i. e. , to clear off the debts borrowed for the medical treatment of her deceased husband and for her own maintenance. It was also averred that Kanahiyalal lived separately from the plaintiff and was in possession of his separate share of the property, which Mst. Gaindi had transferred by the sale deed. In view of the above pleadings the trial court framed the following issues: (1) Whether the disputed property was the joint Hindu family property of the plaintiff and defendant No. 2's husband? (2) Whether the plaintiff and defendant No. 2's husband had separated status and enjoyed separated properties? (3) Legal aspects of the disputed alienation of relief. It is worthy of note that no issue regarding legal necessity for the sale was framed. It appears that the defendant opposed the framing of such issue when the plaintiff moved for it and the court acceded to the defendant's request. Later on when the defendant moved the court for framing an issue on the point of legal necessity, the plaintiff opposed it and the court acceded to the plaintiff's request. However, both parties led evidence in regard to the question of legal necessity for the alienation, which was the crucial question to be determined in this case. The courts below have come to the finding that Kanahiyalal at the time of his death was a member of the joint Hindu family and the property in dispute was jointly possessed by him and the plaintiff. They have held that after the death of Kanahiyalal his undivided interest in the property passed to the plaintiff by survivorship. Issue No. 2 was also found against the defendant. The first appellate court did not take into consideration the provisions of the Hindu Women's Right to Property Act (No. XVIIIof 1937) (hereinafter called the Act) at all which was indisputably applicable in Jaipur where the property was situated and Kanahiyalal had died. The trial court did consider the provisions of the Act, but held that Mst. Gaindi after the death of her husband had the same interest in the joint family property as her husband had, and since her husband was incapable of alienating the undivided interest in the coparcenary, Mst. Gaindi suffered from the same disability as long as the coparcenary had not been disrupted by a suit for partition. This was how the learned trial Judge construed sub-sec. (2) of sec. 3 of the Act; But sub-sec. (3) of section which says that: "any interest devolving on a Hindu widow under the provisions 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. " was not fully appreciated. However, both the courts found that there was legal necessity to the extent of Rs. 1700/- (Rs. 15000/- principal and Rs. 200/- interest) for Mst. Gaindi to transfer the property because the amount had been taken as a loan for the treatment of Kanhaiyalal who was suffering from tuberculosis which ultimately proved fatal. Accordingly the declaration prayed for was made in favour of the plaintiff and on equitable grounds a charge for Rs. 1700/- was created over the disputed property in favour of the defendant No. 1. The defendants have not preferred any appeal against the decree of the courts below and it is only the plaintiff who has come in second appeal to this Court and the contention on his behalf is that Mst. Gaindi had only a right of maintenance and had no right to alienate the property irrespective of any legal necessity for it. It was next contended that the loan of Rs. 1700/- was taken by Mst. Gaindi herself during the life time of her husband and as such it could not be regarded as a debt of her deceased husband so as to create any legal necessity for the alienation. In my view there is no force in either contention. Provisions of sec. 3 sub-sec. (2) and sub-sec. (3) of the Act have been the subject matter of interpretation by several High Courts. In Kunja Sahu vs. Bhagaban Mohanty (1) Panigrahi, J. observed that: "as I read the two sub-sections, I come to the conclusion that sub-sec. (2) limits the extent of the widow's estate to 'the same interest as her husband had' while sub-sep. (3) describes the character of that estate as a Hindu Woman's estate. The proviso to sub-sec. (3) creates a right in the widow to reduce the interest of her husband to her separate possession, by claming partition as a male owner. The expression 'the same interest as he himself had' occurring in sec. 3, sub-sec. (2), is not very happily worded and is capable of different interpretations. It is contended for the plaintiffs-appellants that the expression means that the interest that the widow acquires is of the same kind and is subject to the same limitations as it was while in the hands of her husband as coparcener. It is, therefore, argued that as the husband was incapable of alienating the undivided interest in the coparcenary, his widow suffers from the same disability so long as the coparcenary has not been disrupted by a suit for partition. This is the only ground on which the alienation in favour of defendant 1, is challenged. The Act does not effect a statutory severance of the status though it creates, on the death of a coparcener, a limited interest known as the Hindu Women's Estate in favour of his widow. The coparcenary remains intact, but the husband's interest does not pass to his coparceners by survivorship and devolves on his widow. The widow remains a member of the coparcenary though she is not a coparcener herself. She can thus be represented by Karta of the family and the interest that she has acquired is liable to fluctuation as the interest of any other living coparcener is, unless she carves out her estate from the coparcenary by a partition. Prior to the passing of the Act, she had no such right which could be enforced in a Court of Law. The Act being remedial, it should receive a beneficial construction so that the purpose of the legislation may be carried out. If the appellants' contention were to be accepted, the result would be that, on the death of a coparcener, his widow should invariably be driven to file a suit and she can claim no right in the coparcenary unless it is disrupted. This could hardly have been the result intended by the Legislature. On the other hand, by recognising the right of the widow to alienate for purposes for which a woman's estate can be sold even while the coparcenary is left intact, no disruption of the coparcenary would be necessary. According to the appellants' argument the husband was incapable of alienation during his lifetime and therefore his widow would like-wise be unable to alienate because sub-sec. (2) of sec. 3 says that she has the same interest as her husband had. It would equally be arguable that the widow becomes a coparcener or the manager as her husband was the one or the other quod the family property because she succeeds to the same interest' of her husband. This reading of the section would render the next succeeding sub-section nugatory as the interest devolving on the widow shall be limited interest known as Hindu Woman's estate if she is deprived of her right to alienate during her lifetime which she would have if she were the widow of a sole surviving coparcener. Sub-secs. (2) and (3) would, therefore, be inconsistent with each other and would stultify the object and intendment of the Act. " The above decision was followed by the Patna High Court in Pem Mahton vs. Bandhu Mahto (2 ). In a full Bench decision of the Madras High Court in Parappa alias Hanumanthappa vs. Nagamma (3) it was observed that - "the Act therefore, has conferred a new right on the widow of a deceased coparcener in modification of the pre-existing law. Sec. 3 (2) of the Act does not bring about a severance of interest of the deceased coparcener. Certainly the widow is not raised to the status of a coparcener though she continued to be a member of the joint Hindu family as she was before the Act. The joint family would continue as before subject only to her statutory right. The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced, namely, that she continued the legal persona of the husband till partition. From the standpoint of the other male members of the joint family, the right to survivorship was suspended. The legal effect of the fiction was that the right of the other members of the joint family would be worked out on the basis that the husband died on the date when the widow passed away. She would have during her life time all the powers which her husband had save that her interest was limited to a widow's interest She could alienate her widow's interest in her husband's share ; she could even convey her absolute interest in the same for necessity or other binding purposes. She could ask for partition and separate possession of her husband's share. In case she asked for partition her husband's interest should be worked out having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the family during her lifetime on her demise the succession would be traced to her husband on the basis the property was his separate property. If there was no severance, it would devolve by survivorship to other members of the joint Hindu family. This conception of the legal personal of the husband continuing to live in her steers clear of many of the anomalies and inconsistencies that otherwise would arise. " The decisions of the Bombay High Court in Mahadu Kashiba Varnekar vs. Gajar Bai Shankar Varnekar (4) and Dagadu Balu vs. Namdeo Rakhmaji (5) also support this view. From the decisions with which I respectfully agree, it is clear that under the Act of 1937, a widow got a limited estate known as Hindu Woman's estate and also a right to claim partition. She can alienate her own life estate without any legal necessity and her undivided interest absolutely for legal necessity. The courts below therefore, were not right in holding that Mst. Gaindi had no right to sell the property even for legal necessity. As regards the second contention, no doubt two sums were borrowed by Mst. Gaindi in her own name during the life time of her husband from Kanhaiya Lal (D. W. 5 ). The third amount of Rs. 400/- was borrowed by her for her own maintenance after Kanhaiyalal had died. The first two amounts of Rs. 400/-and 700/- were borrowed by Mst. Gaindi for the purposes of her husband i. e. , for his medical treatment, On a consideration of oral and documentary evidence produced on behalf of the defendants the courts below have come to the conclusion that a sum of Rs. 1500/- was borrowed by Mst. Gaindi for the medical treatment of her husband and her own maintenance and she in fact paid Rs. 1700/- i. e. , Rs. 1500/- principal and Rs. 200/- interest to the creditor Kanhaiyalal (D. W. 5) out of the sale price of the property. Now so far as the money was borrowed by Mst. Gaindi for her own maintenance it is clear that she had no means to maintain herself and had to live with her father after the death of her husband. She had only the property left by her husband that is the disputed property and in this state of things it cannot be said that the amount borrowed for her own maintenance was not for legal necessity. As for the money borrowed for the medical treatment of her husband it is clear on the evidence that he was suffering from tuberculosis and during his protracted illness lived in Jaipur. Mst. Gaindi's father lived in Alwar and so with his help she could obtain loans for the medical treatment of her husband from there. The amounts were not borrowed for her personal purposes. In such circumstances the amounts borrowed by Mst. Gaindi must be virtually regarded as having been borrowed by the husband himself through her and after his death should be regarded as his own debts whose payments must be regarded as obligatory upon her so as to justify the sale. That being so the finding of the courts below that to the extent of Rs. 1700/- there was legal necessity for the alienation, is quite just. In this view of the matter this appeal has no force and it is hereby dismissed with costs. .;