# [1967] 1 S.C.R. 7

- **Citation:** [1967] 1 S.C.R. 7
- **Court:** Supreme Court of India
- **Decided:** 1966-08-04
- **Bench:** K. N. Wanchoo, J.C. Shah, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-1-s-c-r-7-3918
- **Pages:** 8

## Headnote

Hindu Women·s
Rlghts to Property
Act
(18 of 1937)
Section
3(2); 3(3)-Sope of-Hindu widow claiming partition of coparcenary property-Whether right of survivorship of other coparceners in such property
extinguished-Nature of widow's in1erest-Devo/ut1on thereof.
C, a Hindu widow, instituted a suit in April 1949 against the c0llaterals
of her husband for a decree for partition and separate possession of a
share in the propertil:s belonging t() a coparcenary, of which her husband
was a member. It was her case that her husband separated in 1934 from
the corarcenary and that on his death in October 1937, his share in the
property devolved upon her but that the defendants failed and neglected
to divide the estate and deliver to her the share inherited by her C died
in 1951 and her two daughters, the respondenlll in the appeal, were
brought on the record as her heirs artd legal representatives.
The trial court di•missed the suit on the view that tho plea of separation of C's husband from the coparcenary in 1934 was not established and
that his interest in the coparcenary property devolved upon the other
coparceners. In appeal, the High Court re..-ersed this dociiiun and granted
a decree for pessession of a share in the property as at the date of tho
...it.
On appeal to this Court,
HELD : The smt was rightly docreed by the High C-0urt.
Although
it was not established that C's husband separated from the coparcenary
in 1934, upon his death in 1937, by the operation of section 3 of
Act 18 of 1937, C was invested with her husband's interest in the coparcenary property. When she instituted a suit for partition, that interest
became defined and vested in her free from all claims or rights of tho .
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coparceners of her husband. On Cs death, even though the interest was
not sep11rate by metes and bounds, and was not in her exclusive posses·
sion, it devolved upon the nearest heirs of her husband i.e. the . respondents. (14 DJ
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A widow of a coparcener is invested bys. 3(2) of the Act (18 of 1937)
with the same interest which her husband had at the time of his dealth in
the property of the coparcenary. She is thereby introduced in the coparcenary, and between the surviving coparceners of her husband and
the widow so introduced there arises community of interest and unity of
possession.
But the widow does not on that account become a coparcener; though invested with the same interest which her husband had in the
property she does not acquire the right which her husband could h"'"
exercised over the interest of the other coparcenen. Because of statutory
mbstitution of her interest in the coparcenary property in place of her
husband, the right which the other coparceners had,
under the
Hindu
law of the Mitakshara school, of taking that interest by
the Pile of
1univorship remains suspended so long as that estate enurm. Although
the interest acquired by the widow under s. 3(2) is subject to the reatrictions on alienation which are inherent in her estate, she 1till h ..
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SUPREME COURT REPORTS
(1967) I S.C.R.
power to make her interest definite by making a demand for partition ••
a male owner may. If the widow after being introduced into the family
to which her bu.band belonged docs not seek partition, on the tennination of her estate her interest will merge into the coparccnary propert)'.
Rut if she claims panition. she is severed from the other
membrs
-:ind
her intel'tdt becomes a defined interest in the coparcenary property, and
the right of the other coparceners to take that interest by sunivorship will
•tand extinguished. If she dies after partition or her estate is otherwise
determined, the interest in coparcenary property which has Ve<;ted in her
\\'ill devolve upon the heirs of her husband.
To assume as has ~n done
in sonic decided case' that the right of the coparccners to take her interest
on determination of Lhe widow's interest survives even
afler the interest
has become definite. because of a claim for pa11ition, is tu denude the
right

## Text

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SATRUGHAN ISSER
.v.
SMT .. SUBUJPARI & OTHERS
August 4, 1966
[K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, JJ.j
Hindu Women·s
Rlghts to Property
Act
(18 of 1937)
Section
3(2); 3(3)-Sope of-Hindu widow claiming partition of coparcenary property-Whether right of survivorship of other coparceners in such property
extinguished-Nature of widow's in1erest-Devo/ut1on thereof.
C, a Hindu widow, instituted a suit in April 1949 against the c0llaterals
of her husband for a decree for partition and separate possession of a
share in the propertil:s belonging t() a coparcenary, of which her husband
was a member. It was her case that her husband separated in 1934 from
the corarcenary and that on his death in October 1937, his share in the
property devolved upon her but that the defendants failed and neglected
to divide the estate and deliver to her the share inherited by her C died
in 1951 and her two daughters, the respondenlll in the appeal, were
brought on the record as her heirs artd legal representatives.
The trial court di•missed the suit on the view that tho plea of separation of C's husband from the coparcenary in 1934 was not established and
that his interest in the coparcenary property devolved upon the other
coparceners. In appeal, the High Court re..-ersed this dociiiun and granted
a decree for pessession of a share in the property as at the date of tho
...it.
On appeal to this Court,
HELD : The smt was rightly docreed by the High C-0urt.
Although
it was not established that C's husband separated from the coparcenary
in 1934, upon his death in 1937, by the operation of section 3 of
Act 18 of 1937, C was invested with her husband's interest in the coparcenary property. When she instituted a suit for partition, that interest
became defined and vested in her free from all claims or rights of tho .
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coparceners of her husband. On Cs death, even though the interest was
not sep11rate by metes and bounds, and was not in her exclusive posses·
sion, it devolved upon the nearest heirs of her husband i.e. the . respondents. (14 DJ
H
¥
A widow of a coparcener is invested bys. 3(2) of the Act (18 of 1937)
with the same interest which her husband had at the time of his dealth in
the property of the coparcenary. She is thereby introduced in the coparcenary, and between the surviving coparceners of her husband and
the widow so introduced there arises community of interest and unity of
possession.
But the widow does not on that account become a coparcener; though invested with the same interest which her husband had in the
property she does not acquire the right which her husband could h"'"
exercised over the interest of the other coparcenen. Because of statutory
mbstitution of her interest in the coparcenary property in place of her
husband, the right which the other coparceners had,
under the
Hindu
law of the Mitakshara school, of taking that interest by
the Pile of
1univorship remains suspended so long as that estate enurm. Although
the interest acquired by the widow under s. 3(2) is subject to the reatrictions on alienation which are inherent in her estate, she 1till h ..
8
SUPREME COURT REPORTS
(1967) I S.C.R.
power to make her interest definite by making a demand for partition ••
a male owner may. If the widow after being introduced into the family
to which her bu.band belonged docs not seek partition, on the tennination of her estate her interest will merge into the coparccnary propert)'.
Rut if she claims panition. she is severed from the other
membrs
-:ind
her intel'tdt becomes a defined interest in the coparcenary property, and
the right of the other coparceners to take that interest by sunivorship will
•tand extinguished. If she dies after partition or her estate is otherwise
determined, the interest in coparcenary property which has Ve<;ted in her
\\'ill devolve upon the heirs of her husband.
To assume as has ~n done
in sonic decided case' that the right of the coparccners to take her interest
on determination of Lhe widow's interest survives even
afler the interest
has become definite. because of a claim for pa11ition, is tu denude the
right to claim partition of all reality. [II C-12 Bl
Lakshmi Per11ma/lu v. Krislrnavenanzma, [1965] I S.C.R. 26 referred
to; Moyya Subba Rao and Another v. Moyya Krishna Prasadan1 and Anr.,
I.L.R. (1954] Mad. 257; Sliamrao B/iagwantrao v.
Kasliibai and Others,
AIR 1956 Nag. 110; and B/iagabal v. Bhalvalal & Others, !LR (1957] M.P.
114, disapproved. Parappa11arl Parappa alias Hanumant/rappa and Another
v. Parappagari Nagamnza and Others, J.L.R. [1954] Mad. 183, approved.
There is no force in the contention that the right ve~led in
the survivinl! coparceners lo take the interest vested in
th-~ \\ id1..l\\' cnun;,,, '"\ long
a~ th-;! \Vidow docs not by suit or by other private arrangcn1cnt reduce
her interest in the property of the copurcenary to exclusive po-..scssion.
The right which the widow may claim is not difflJl'ent from the ri1ht
\Vhich her husband could claim tf he had heen alive; thcr~fore the rrgh1
of the coparcencrs
to
take the joint
property by survivorship on
the
death of the coparcener does not survive a demand for parlit'on hy tho
\\'ido'A' in th coparccnary. (I:! G-H]
Giria Bai v. Sadashiv Dl11u1dirai and 01/iers, I ... R. 43 I.A. 151, referred
to.
Pratapmu/l Agarwal/a v. Dhanabat/ Bibi and Othen, L.R. 63 I.A. 33.
di;tinguished.
C!VJI. APPF.LLA TE JL'Rl5DICTl(JN
1963.
Civil Appeal ~o. 939 of
Appeal from the judgment and decree dated March 2~. 1958
of the Patna High Court in Appeal from Original Decree :\'o. 458
of 1951.
Sarjoo Prasad, /11d11 Sheklwr Prasad Sinha, B. P. Singh, Anil
Kumar Sabio/; and U. P. Singh, for the appellant.
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N. C. Clwtle(jee and D. Gohurd/11111, for respondents Nos. I
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and 2.
R. B. Datar, Vineet Kumar and K. R. Chaudhuri, for the respondent No. 9.
The Judgment of the Court was delivered by
Sliah, J.
Musamat Chanda Kuer, widow of Babuji, instituted
a suit on April 23, 1949 in the Court of the Subordinate Judge,
Darbhanga, against the collaterals of her husband for a decree for
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SATRUGHAN V. SUBUJPARI (Shah, J.)
9
partition and separate possession of a half share in the properties
described in Schedules A to E ai:td a fourth share in Sch. F annexed
to the plaint. It was the case of Chando Kuer that her husband
Babnji separated in 1934 from the coparcenary of which he was a
member, and on his death on October 28, 1937 his share in the
family property devolved upon her, but the defendants failed and
neglected to divide the estate and deliver to her the share inherited
by her. The suit was resisted by the collaterals of Babuji.
Chando
Kuer died on March 9, 1951, and her daughters Subujpari and
Sujan Devi (hereinafter collectively called 'the appellants') were
brought on the record of the suit as her heirs and legal representatives.
Being of the opinion that the plea of separation of Babuji
from the coparcenary in 1934 was not established, and that the interest of Babuji in the copercenary property devolved upon the surviving coparceners, the Trial Court dismissed the suit. In appeal,
the High Court of Judicature at Patna, granted a decree for possession of a share in the property as at the date of the suit. They held
that on the death of Babuji on October 28, 1937, Chando Kuer.
by virtue of the Hindu Women's Rights to Property Act, fS of
1937, acquired in the property of the coparcenary the same interest
which Babuji had, and by the institution of the suit for partition
that interest became defined, and on her death it devolved upon the
appellants as heirs to the estate. of Babuji. With certificate granted
by the High Court, Satrughan the son of Ghiran has appealed to
this Court.
Under the Mitakslwra school of Hindu law, on the death of a
coparcener his individual interest in the coparcenary property
devolves by survivorship upon the remaining coparceners, and
his widow if any is entitled to maintenance only out of the property.
But the Parliament enacted Act 18 of 1937 which sought to invest the
widow in a family governed by the Mitakshara law with the same
interest which her husband had in the family estate at the time of
his death, and also with the right to obtain by partition separate
possession of her interest. Section 3 of Act 18 of 1937 as amended
by Act 11of1938 (insofar as it is material in this appeal) is:
"3. (!)
(2) When a Hindu governed by any school of Hindu
law other than the Dayabhaga schoo!. 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 the same interest as he himself
had.
·
(3) Any interest devolving on a Hindu widow under
the provisions of this section shall be the limited
Ml4Sup. CI/66-2
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SUPllEMB COURT llEJ'Oll TS
[1967] I S.C.lt.
interest known as a Hindu Woman's estate, proA '
vided however that she shall have the same right
of claiming partition as a male owner.
(4)
This Act did not operate to regulate sijccession to agricultural lands
in the Provinces, but the Province of Bihar enacted Act VI of 1942
S
extending the operation of Act 18 of 1937 to agricultural lands in
Bibar with retrospective effect from April 14, 1937.
The Act seeks to make fundamental changes in the concept of
a coparcenary and the rights of members of the family in coparcenary property. The Hindu law, as laboriously developed by the
Anglo-Indian Courts in the light of certain basic concepts expounded by the ancient law givers, had acquired a degree of consistency
and symmetry. The Act in investing the widow of a member of a
coparcenary with the interest which the member had at the time of
his death has introduced changes which are alien to the structure of
a coparcenary. The interest of the widow arises not by inheritance
nor by survi'l'orship, but by statutory substitution: Lakshmi Peruma/lu v. Krishnavenamma( 1). Her interest in the property is the
limited interest known as a Hindu woman's estate: but the Act
gives her the same power to claim partition as a male owner has.
The Act is however silent about the mode of devolution of the
property obtained on partition, on termination of her estate, about
the rights of the surviving coparceneri; qua the interest vested in the
widow, about the rights of the widow qua the interest of the surviving coparceners, and about several other matters. To resolve
the problem raised before us, we may in the first instance refer to
the principal characteristics ofa Hindu coparcenary and of the limited estate held by Hindu females known as a Hindu woman's estate.
A Hindu coparcenary under the Mitakshara school consists of
males alone: it includes only those members who acquire by birth
or adoption 'interest in the copareenary property. The essence
of coparcenary property is unity of ownership which is vested in the
whole body of coparceners. While it remains joint, no individual
member can predicate of the undivided property that he has a definite share therein. The interest of each coparcener is fluctuating,
capable of being enlarged by deaths, and liable to be diminished by
the birth of sons to coparccners: it is only on partition that the
coparcener can claim that he has become entitled to a definite share.
The two principal incidents of coparcenary property are: that the
interest of coparceners devolves by survivorship and not by inheritance; and that the male issue of a coparcencr acquires an interest
in the coparccnary property by birth, not a~ representing his father
but in his own independent right acquired by birth.
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(1) [19651 I S.C.R. 26.
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SATRUGHAN V. SUBUJPARI (Shah, J.)
11
Property inherited by a Hindu female who has entered the
gotra of the deceased owner by marriage acquires according to all
schools of Hindu law a widow's estate or a Hindu woman's estate.
In that estate her right is of an owner and not that of a tenant-forlife: the property is vested in her and she represents it completely:
so long as she is alive no one has any ·vested interest in the property
held by her. Her rights of alienation are however restricted: she
may alienate the corpus of the property only for purposes of legal
necessity or benefit of the estate. the limited estate of a Hindu
female postulates ownership in the property held by her subject to
restrictions on her power of alienation and devolution of that property on extinction of the estate of the female on the heirs of the last
full owner.
By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the
same interest which her husband had at the time of his death in the
property of the coparcenary. She is thereby introduced into the
coparcenary, and between the surviving coparceners of her husband
and the widow so introduced, there arises community of interest and
unity of possession. But the widow does not on that account
become a coparcener: though invested with the same interest w~ch
her husband had in the property she does not acquire the right which
her husband could have exercised over the interest of the other
coparceners. Because of statutory substitution of her interest
in the coparcenary property in place of her husband, the right
which the other coparceners had under the Hindu law of tL .. Mitakshara school of taking that interest by the rule of survivorship
remains suspended so long as that estate enures. But on the
death of a coparcener there is no dissolution of the Coparcenary
so as to carve out a defined interest in favour of the widow in the
coparcenary property: Lakshmi Perumallu v. Krishnavenamma.(1)
The interest acquired by her under s. 3(2) is subject to the restrictions
on alienation which are inherent in her estate. She has still power
to make her interest definite by making a demand for partition, as
a male owner may. If the widow after being introduced into
family to which her husband belonged does not seek partition,
on the termination of her estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from
the other members and her interest becomes a defined interest
in the coparcenary property, and the right of the other coparceners
to take that interest by survivorship will stand extinguished. If she
dies after partition or her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve
upon the heirs of her husband. It is true that a widow obtaining
an interest in coparcenary property by s. 3(2) does not iiiherit that
interest but once her interest has ceased to have the character of
(I) [1965] I. S.C.R. 26.
12
SUPREME COURT llEPOR.TS
(1967] I S.C.R.
undivided interest in the property, it will upon termination of her
estate devolve upon her husband's heirs. To assume as'has been
done in some decided cases that the right of the coparccners to
take her interest on determination of the widow's interest survives
even after the interest has become definite, because of a claim for
partition, is to denude the right to claim partition of all reality.
Counsel for the
appellant contended that the right vested
in the surviving coparccners to take the interest vested in the widow
enures so long as the widow does not, by suit or by private arrangement reduce her interest in the property of the coparcenary to
exclusive possession.
He submitted that the expression "partition"
in s. 3(3) means not merely severance of status, but division of
interest by metes and bounds followed by assumption of exclusive
possession by the widow. There is no warrant for this submission.
The widow acquires by statute the same right to claim partition
which a male owner has, and as pointed out by the Judicial Committee of the Privy Council in Giria Bai v. Sadashiv Dhundiraj
and Others(•):
"In Hindu law, "partition" does not mean division
of property into specific shares; it covers,
. . . . .
both division of title and division of property. In the
Mitakshara, Vijnaneswara defines the word "vibhaga",
which is usually rendered into English by the word "partition", as the "adjustment of divers rights regarding the
who!~ by distributing them in particular portions of the
aggregate."
Mitra Misra explains in the Viromitrodaya
the meaning of this passage: he shows that the definition of
Vijnaneswara does not mean exclusively the division of
property into specific shares as alone giving right to property, but includes the ascertainment of the respective
rights of the individuals, who claim the heritage jointly.
He says (Sarkar's translation, ch. i .. s. 36); "For partition
is made of that in which proprietary nght has already arisen,
consequently partition
cannot properly be set
forth
as u means of proprietary rieht.
Indeed. what is effected
by partition is only the adjustment of the proprietary
right into specific snares".
This right to claim partition which a male owner may exercise is
conferred upon a Hindu widow by s. 3(3).
On the making of a
claim for partition the interest of the widow gets defined. The right
"hich the widow may claim is not different from the right which
her husband could claim if he had .been alive, therefore the right
of the coparceners to take the joint property by survivorship on the
<lcath of a·coparcener does not survive a demand for partiLion by the
widow in the coparcenary.
(I) l. R. 4} I. A. 151.
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SATRUGHAN V. SUBUJPARI (Shah, J.)
13
The interest which a widow acquires under s. 3(2) of Act 18 of
1937 has no analogy with the interest which a female member of a
Hindu joint family acquires in the property of the joint family
allotted to her on partition between her sons or grandsons. It is
true, as observed in Pratapmull Agarwal/a v. Dhanabati Bibi and
Others(') that under Mitakshara law when the family estate in a
Hindu joint family is divided a wife or mother is entitled to a share,
but is not recognized as the owner of such share until the division
of the property is actually made, as she has no pre-existing rights in
the estate save a right of maintenance. If she dies before the
property is divided, her share in the property falls back into the
property from which it was carved out. But a Hindu widow acquires under s. 3(2), even before division of the property, an interest
in property and that interest ·gets defined as soon as an unequivocal
demand for partition is made by her.
The dictum 9f the Madras High Court in Movva Subba Rao ant!
Another v. Movva Krishna Prasadam and Anr(2) that the widow's interest is a personal interest and comes to an end on her death cannot
be regarded as a correct statement of the Jaw. The view expressed
by the Nagpur High Court in Shamrao Bhagwantrao v.
Kashibai
and others(l) that "the right of a widow to obtain her share in the
joint family property (even after a suit for partition is filed by the
widow) under the Hindu Women's Right to Property Act is a
special one. It comes to an end with the widow, when her death
occurs during the pendency of a suit (filed by her). The cause
of action is not extended to her legal representatives" and the observations made by the Madhya Pradesh High Court in Bhagabai
v.
Bhaiyalal Others(4) that "the property obtained by a widow
of a deceased coparcener after a suit for partition does not become
the separate property of her deceased husband and on her death
the property reverts to the coparcenary", proceed upon an assumption which is inconsistent with well settled rules of Hindu Law
according to the Mitakshara school. The assumption that though
the right vested in the
widow by the Act is a right of property
which may on demand for partition become separated from the
coparcenary property, it is still liable to revert to the coparcenary
on the determination of the widow's estate, does not give full effect
to the statutory conferment upon the widow of "the same right
of claiming partition as a male owner."
The following observations made by Subba Rao., J.,
in
delivering the judgment of the Full Bench in Parappagari Parappa
alias Hanumanthappa and Another v. Parappagari Nagamma and
(I) L.R. 63 I. A. 33.
(3) A.I.R. 1956 Nai. 110.
(2) I.LR. !9S4 Mad. 257,
(4) I.L.R. 1957 M.P. 114.
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IUPADll OOVl.T llEPOATS
(1967) 1 S.C.IL
Others,(') in our judgment, correctly set out the effect of the Act
A
on the question under review:
"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
that the property was his separate property. If there was r.o
severance, it would devolve by survivorship to the other
members of the joint Hindu family:"
On the finding recorded by the Trial Court which was not
challenged in appeal before the High Court, Babuji did not separate
in ·1934 from the other coparceners. But he died in October 1937 and
by the operation of Act 18 of 1937 as modified by Bihar Act 6 of
1942 Chando Kuer was invested with her husband's interest in
the coparcenary property agricultural as well as non-agricultural.
When she instituted a suit for partition that interest became defined, and vested in her free from all claims or rights of the coparceners of her husband. The right of the coparccners to take that
interest by survivorship on Chando Kuer's death was then extinguished. On her death, even though the interest was not· separated
by metes and bounds, and was not in her exclusive possession
it still devolved upon the nearest heirs of her husband, her daughters. The suit was therefore rightly decreed by the High Court.
The appeal fails and is dismissed with costs.
R.K.P.S.
Appeal dismissed.
{I) I.LR. (1954] Mad. 183.
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