TaxTMI 
TaxTMI 
1952 (12) TMI 47
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....the alternative, for recovery of possession. 3. The defence is that there was separation in status between the plaintiff and his deceased brother Dibyasingha; as such, defendant 2 could execute a valid deed of transfer in favour of the appellant. 4. Both the Courts below have come to a concurrent finding that in fact there was no severance of interest between the plaintiff and Dibyasingha during the life time of the latter. The Courts below, to come to such a conclusion, have relied on the position that only one assessment of Chowkidari tax has been made and that is in the name of the plaintiff as appears from Exs. 1(Ka) and 8 series. The plaintiff also has been paying rent in respect of the entire family land in his own name. The plaintiff alone has been assessed for paying, water-rate tax in the year 1938-39. They have further relied upon sale-deed (Ex. 5 dated 7-3-32), simple bond (Ex. 4 dated 2-8-33) and. mortgage bond (Ex. 4(a) dated 15-5-33), executed by both the brothers Narasingha and Dibyasingha describing them therein as members, of a joint Hindu coparcenary. 5. The defence had relied very much in the Courts below upon two sale-deeds (Exs. B and A). Exhibit B is ....
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....s eight annas share of the property. The recital in the second document is that as the vendee has already purchased the eight annas share in respect of the property, the second document was being executed in respect of the balance. There is no recital in any of these documents that in fact the brothers had agreed to have defined their shares at any time or that the brothers were separate in status. In our view, the mere execution of document by one of the coparceners in respect of his share in the property does not constitute an unequivocal expression of an agreement defining the shares of the brothers or the intention to separate. The first point taken up by Mr. De therefore, fails. 8. The second point taken up by Mr. De is that even though the husband of defendant 2 had died in the year 1934, that is prior to the coming into force of the Hindu Women's Right to Property Act (No. 18) of 1937, as amended by Act 11 of 1938, the widow will be entitled to the interest of her deceased husband as he had at the time of his death, under the provisions of Section 3, Clause (2) of the Act. 9. It will be pertinent to quote the provisions of Sub-sections (1) and (2) of Section 3 of t....
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....t be taken to be separate property as strictly understood or as contemplated under Sub-section (1) of Section 3 inasmuch as if a son would be born to the owner of the property he would be entitled to interest in the property by birth. The property cannot be taken to be a self-acquisition of the sole surviving coparcener in respect of which the son will be entitled to inherit only after the father's death. Their Lordships, therefore, negatived the contention that the plaintiff, the widow of the predeceased son, could take shelter under Sub-section (1). It was further held, as appears from the judgment of Varadachariar J. that she would not be entitled to any benefit arising from Sub-section (2) of Section 3 as her husband died before the passing of the Act. The observation of Varadachariar J. runs to the effect: "It is true that, on the above view (that the properties in the hands of Arunachalam are not his separate properties), the plaintiff in the present case will derive no benefit from the Act, though she happens to be the widow of a predeceased son. But that is due to the circumstance that her husband died before the passing of the Act." His Lordship further obs....
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..... In this case though not expressly but by necessary implication, it may be understood that B's widow lost her husband before the Act." We may refer to a passage in the judgment of Narasimham J. also in support of our above conclusion. At p. 385, Narasimham J. while distinguishing the decision of the Federal Court, observes: "The use of the word 'prima facie' makes it absolutely clear that there is no decision by the Federal Court of this question. This point was not specifically taken up and moreover in that case it could not be taken up because the entire property had vested in a sole coparcener before the commencement of the Act of 1937. "To conclude: The Act being a remedial Act there seems no justification for not giving full effect to the words of Sub-section (3) so as to embrace within its scope persons who became widows not only after the commencement of the Act so long as the interest which their husbands had in the joint family property at the time of their death had not vested in any individual." In the case before their Lordships of the Special Bench case, at the time of the death of the husband of the widow of a coparcener before 1937, ....
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....ly to arise after its commencement because these alone could presumably have been within its contemplation" puts the matter beyond any controversy regarding the non-applicability of the Act to widows whose husbands died before the Act. My learned brother Narasimham J., sought to distinguish that case on the ground that "the use of the word 'prima facie' by Varadachariar J. makes it absolutely clear that there is no decision by the Federal Court of this question. This point was not specifically taken up and moreover in that case it could not be taken up because the entire property had vested in a coparcener before the commencement of the Act of 1937." With great respect I must express my dissent from this statement. Even an obiter dictum of the Federal Court is binding upon the High Court and when a Superior Court held that an Act is "prima facie prospecti....
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....p. Nor can it be said to have "vested" in Arunachalam, for there is no such thing as inheritance or vesting in a joint family. He was holding the joint family property by survivorship. The family had for the time being withered but was not dead. New members might be introduced into the family by birth or adoption. If, by the simple reason of the property having 'vested' in Arunachalam, the plaintiff had lost her right, it is strange that so much argument should have been wasted by so many eminent counsel to establish such an obvidus proposition. The Federal Court expressly held that the property that devolved upon Arunachalam as the sole surviving coparcener was not his separate property as "the moment sons are born to him they will become coparceners". This is also the view of the Judicial Committee taken in -- 'Anant Bhikkappa v. Shankar Ramchandra', AIR 1943 PC 196 (D) where their Lordships observed: "This possibly challenges the character of a surviving coparcener's right as an absolute right, and creates qualifications which impair its completeness." The property that Arunachalam got on the death of his son as the "sole surviving coparcener" was....
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....liable to diminution) will altogether remove the difference that now exists between male coparceners and female members of a Hindu family. The learned Judge then concludes : "In this view of the matter his interest remains undisposed of and what goes down from time to time by deaths or births is the right to represent him, which is not--in the strict sense of the term--the same as the right to property." But, then, what happens to the undisposed of interest of the deceased husband? The deceased husband's interest was the right to enjoy the property jointly with others and this interest lapsed by death. I cannot, therefore, subscribe to the view that 'his interest remains undisposed of, tO my mind there has been some confusion in the use of the word "coparcener" as applied to a Hindu undivided family and as it is understood in the English law of tenures. The distinction between the two was pointed out by Lord Dunedin in -- 'Baijnath Prasad Singh v. Tej Bali Singh', AIR 1921 PC 62 (E) thus: "When a member of a joint family dies his right accresces to the other members by survivorship. But if a coparcener dies, his or her right does not accresce to....