TMI Blog1952 (12) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ration 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 dated 27-5-28, executed by Dibyasingha in respect of his eight annas share and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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 the Act. (1) When a Hindu governed by the Dayabhag school of Hindu Law dies intestate le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuch 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 observes : It (the Act) is prima facie prospective and its proper construction and operation must be determined with ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, there were more than one coparceners, and, as such, in the view of their Lordships there was a continuance of joint family and the joint family p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prospective it is not open to subordinate Courts to canvass the import or implication of that dictum. The use of the word prima facie would indicate that there is no possibility of an alternative construction being put on the Act, for it is on the face of it prospective. But it does not end there. The judgment of the Federal Court further says that its proper construction and operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, therefore, not his absolute property and the right he had in it was not absolute in character, and it could not be said to have vested in him. 15. Another proposition advanced by Narasimham J. is that the characteristic attribute of a coparcenary is that a coparcener has a mere 'privilege' to admit male issues only to the coparcenary and that the Act purports to deprive him of this privilege by admitting the widow of a deceased coparcener . If a widow is 'admitted' to the coparcenary, the Act would have said so. On the other hand, the Act merely seeks to 'better' the rights of the widows by enabling them to succeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 the other coparceners, but to his or her own heirs. The law of survivorship was laid down as early as in 'Naraganti Achamma v. Venkatachalapathy', 4 Mad 250 (F) in these terms: Where property is held in coparcenary by a joint Hindu family there are ordinarily three rights vested in the coparcenary; there is no right of survivorship, under the English law, but there is the 'jus accrescendi' in a joint tenancy. The blending of coparcenary and survivorship is a feature peculiar to the Hindu law of joint family and differs from the English law as well as the sense in which Colebrook used it with reference to both Dayabhaga and Mitakshara . I can f ..... 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