Father Death before 1956 - A widow, acquiring an interest in the property - daughter at any rate was never being treated as a coparcener Daughter of pre-deceased wife is entitled for share in the property of her father, who died prior to 1956
JUDGMENT D.B. Bhosale, J.
1. This Second Appeal raises a short yet important question of law, "whether a daughter could acquire any right, either limited or absolute, by inheritenance prior to coming into force of the Hindu Succession Act, 1956 in the property of her deceased father, who died prior to 1956, leaving behind him in addition to such daughter, his widow as well?"
2. The factual matrix, to the extent as may be necessary and relevant for adjudication of the question raised in this appeal, is as follows. The appellant/plaintiff filed a suit for declaration that she has one-half share in the house properties bearing house nos. 102,104,169-A, situated at Somwarpeth, Pune, (for short, "suit properties"), the property of her deceased father, and sought partition thereof, as also for perpetual injunction restraining respondents -defendant nos 1 and 2, (for short, "the defendants") from interfering with her ownership rights and collecting rent from the tenants. Respondent-defendant No. 3 is the daughter of the plaintiffs sister Sonubai. The following Genealogy would clearly bring forth the relationship between the parties.
Genealogy Yeshwantrao (Died on 10.6.1952) (had two wives) | ________________________________________ | | Laxmibai (first wife) Bhikubai (Second wife) (Died in 1930) (Died on 8.7.1970) | | _____________________ | | | | Sonubai Radhabai (Daughter) Champubai Daughter/ Plaintiff/Appellant (Died issueless on Died on 1949 (Died on 2.12.2004) 7.3.1973) | | | | Manikbai (daughter) Mahadeo Defendant No. 3/ (Her husband - died on Respondent No. 3. on 6.4.1977) | ____________________________ | | Keshav Jadhav Nandkumar Jadhav (Respondent No. 1/ (Respondent No. 2/ Defendant No. 1) Defendant No. 2) (his nephew) (his nephew)
3. Bhikubai, the second wife of Yeshwantrao, bequeathed the suit properties to her daughter Champubai by her Will dated 14.8.1956 (Exhibit-50). Champubai died on 7.3.1973 leaving behind her husband, Mahadeo. They both died issueless. Mahadeo, however, before he died on 6.4.1977, executed a Will (Exhibit-54) on 10.9.1976 and bequeathed the suit properties to his nephews - the defendants. Laxmibai, the mother of the plaintiff predeceased Yeshwantrao. The plaintiff died pending this litigation. The case set up by the plaintiff was that after the death of her father Yeshwantrao, all the suit properties were managed by his widow Bhikubai and after her death on 8.7.1970 the plaintiff along with defendant No. 3 and Champubai inherited all the suit properties. Champubai died on 7.3.1973. The plaintiff claims that after the death of Champubai, she being the sole heir of Yeshwantrao, the suit properties would devolve upon her, being the reversioner. In short, the plaintiff traces her title through Yeshwantrao as a successor after the death of Champubai under Section 15(2)(a) of the Hindu Succession Act,1956, (for short, "the Act of 1956"). It appears that there was some litigation going on between Bhikubai and the plaintiff and, therefore, Bhikubai bequeathed the suit properties to her daughter Champubai. The defendants, after the death of Mahadeo, made an application to enter their names in the city survey record on the basis of the Will of Mahadeo. The plaintiff objected to it and the objection was upheld by the city survey officer and the name of the plaintiff was accordingly recorded in the revenue record. It is against this backdrop, the plaintiff filed a suit.
4. The trial Court dismissed the suit holding, inter alia, that Bhikubai alone inherited the suit properties as per the provisions of Hindu Womens Right to Property Act, 1937 (for short, "the Act of 1937"), which turned into an absolute ownership in 1956 on the coming into force of the Act of 1956. It was further held that the Will of Bhikubai is valid Will in law and, therefore, the provisions of Section 15(2)(a) of the Act of 1956 are not applicable in the present case as Champubai acquired the properties by and under the Will from her mother. The Will of Mahadeo was also held to be valid by which defendant nos 1 and 2 claimed to be the absolute owner of the suit properties. Accordingly, the suit of the plaintiff was dismissed by the trial Court vide its judgment and order dated 28.4.1983. The plaintiff carried the matter in appeal. The Appeal Court, vide its judgment and order dated 22.12.1986, confirmed the findings recorded by the trial Court and dismissed the appeal. The Courts below also considered the questions whether the Wills of Bhikubai and Mahadeo were valid and whether Bhikubai revoked the Will under Section 70 of the Indian Succession Act, 1925 (for short,("the Act of 1925").Both the Wills were held to be valid and the contention that Bhikubai revoked her Will during her lifetime was rejected by the courts below.
5. I heard Mr Walawalkar, learned senior counsel for the plaintiff and Mr Kumbhakoni, learned Counsel for the defendants at great length and with their assistance, went through the entire record as also the provisions contained in different statutes referred to above and the judgments cited by them.
6. Mr Walawalkar, at the outset, submitted that the parties in the present appeal are governed by the special rules of succession governing Hindus belonging to Mitakshara School in the Bombay presidency. He invited my attention to paragraphs 43,71 and 72 of Mullas Hindu Law (Seventeenth Edition) and submitted that in the Bombay Presidency a daughter inherits father by taking her share as her absolute estate unlike limited estate which a widow takes in her deceased husbands property. In view of paragraphs 71 and 72, the plaintiff, in the present case, is entitled to have a share in her fathers property simultaneously with her step mother Bhikubai. In support of this contention, he placed heavy reliance upon the judgment of this Court in Laxman S/o Tukaram v. Smt Bendrabai w/of Tukaram Kargate wherein, in similar set of facts, this Court has held that a daughter of a Hindu male in the Bombay Presidency is entitled to a share in her fathers property simultaneously with her step mother, by placing reliance upon the special provisions of Mitakshara Law governing Hindus in Bombay Presidency. Mr Walawalkar further submitted that Bhikubai, being a widow of deceased Yeshwantrao, under Section 3(1) of the Act of 1937 should have become entitled to only one-half share in the suit properties. Under this provision, according to Mr Walawalkar, she was entitled only to the share same as the share of son. The Courts below, under Section 3(1) of the Act of 1937 ought to have allotted only one-half share to Bhikubai and remaining one-half to the plaintiff as per paragraph 72 of Chapter VI of Mullas Hindu Law. He further submitted that Bhikubai became limited owner of the suit properties called "Hindu Widows Estate" as the limited heir of deceased Yeshwantrao in the year 1952. As against this, daughters were considered to be the absolute heir, but had to wait till they succeeded or till the death of mother. Under Section 8 of the Act of 1956, a daughter is entitled to a full-fledged share. He submitted, by this provision, the Legislature intended not to make a daughter wait till the death of her mother and she was given equal right of inheritance to a property during the lifetime of her mother. Therefore, before jumping directly to Section 14 of the Act of 1956 to make the limited estate held by the mother as a limited heir to be her absolute estate, Section 8 ought to have been taken into consideration by the Courts below. In the facts of this case, Mr Walawalkar also raised a question whether Bhikubais Will in favour of her daughter stood revoked by reason of her applying to the city survey office to enter the name of her daughter as the owner of the properties in dispute.
7. Mr Kumbhakoni, learned Counsel for the defendants, on the other hand, submitted that a daughter could certainly inherit the property of the deceased father, but only in the absence of a son and/or widow and not in preference to or with them. He submitted that in paragraph 72 of Mullas Hindu Law, a daughter is placed at serial number 7 in the order of succession. In view thereof, a daughter is entitled to inherit a right or interest in the property of her deceased father only in the absence of any of the heirs as set out under serial nos 1 to 6. He submitted that though Bhikubai prior to 1956 had limited right in the suit properties, became absolute owner under Section 14 of the Act of 1956 and, therefore, she had every right to execute the Will after the Act of 1956 came into force and to bequeath the suit properties to her daughter Champubai. After the death of Champubai, according to Mr Kumbhakoni, her husband Mahadeo inherited that property alone and, therefore, he also acquired the right to execute a Will in favour of the defendants and bequeath the entire suit properties to his nephews. Since both theWills,executed by Bhikubai and Mahadeo,are held to be proved by the courts below, the defendants have become absolute owner of the suit properties. He submitted that the provisions of paragraphs 71 and 72 will have to be read with paragraph 43 of Mullas Hindu Law which clearly makes a statement about daughters right that "daughter/s do not inherit until all the widows are dead". It is against this backdrop, Mr Kumbhakoni submitted that the judgments of the courts below do not warrant interference by this Court under Section 100 of the Code of Civil Procedure.
8. Mr Kumbhakoni, in reply to the submissions advanced by Mr Walawalkar on Section 70 of the Act of 1925, submitted that there cannot be an implied revocation of a Will. Under Section 70 of the Act of 1925, when there is no obvious reason or a clear motive for the testator to revoke the Will, such a plea, according to Mr Kumbhakoni, cannot be entertained. The burden to prove the revocation squarely lies on the party which asserts the case of revocation. In support of this submission, Mr Kumbhakoni placed reliance upon the judgment of the Supreme Court in Durga Prashad v. Debi Charan and Ors. and .
9. It would be appropriate to make reference to a few admitted facts before considering the question involved in the present appeal. The parties in the present case are Hindus governed by the Mitakshara School in Bombay Presidency. The relations between the parties, as reflected in the Genealogy, are not in dispute. There was a litigation between Bhikubai and the plaintiff and as a result thereof Bhikubai had executed the Will dated 14.8.1956, since their relations were strained. The Will dated 14.8.1956 is a registered document attested by a retired Civil Judge, Senior Division, who was examined as a witness in the present case. Bhikubai died 14 years after the Will was executed leaving behind the only natural daughter Champubai. Both the Wills, executed by Bhikubai and Mohadeo dated 14.8.1956 and 10.9.1976 respectively, were held to be proved by the courts below. The findings of the courts below insofar as these Wills are concerned, were not challenged before me. The challenge to the Will of Bhikubai was only on the ground that she revoked the Will by her conduct. It is against this backdrop, I have to address the question framed in the first paragraph of this judgment as also the other question raised by Mr Walawalkar "whether Bhikubais Will in favour of her daughter stood revoked by reason of her application to the city survey office to enter the name of her daughter as the owner of the properties in dispute?"
10. It would be advantageous to look into the relevant provisions of the Act of 1937, the Act of 1956 and the Act of 1925 as also the relevant paragraphs of the Mullas Hindu Law (Seventeenth Edition) for better appreciation of the arguments advanced by the learned Counsel for the parties.
11. The Act of 1937 introduced important changes in the Law of Succession. This short enactment came into force on 14.4.1937. We are mainly concerned with Section 3 of this Act which applies where a Hindu dies intestate. This Act confers new rights on widows in modification of previous law as laid down by the texts and interpretated by judicial decisions. Section 3 thereof is divided into four sub-sections. Sub-section (1) provides that when a Hindu governed by any other School of Hindu Law, other than Dayabhaga School of Hindu Law, or by customary law dies intestate leaving behind "separate property", his widow, or if there is more than one widow all his widows together, shall subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son; provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son; provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. Sub-section (1), thus, puts the three female heirs mentioned therein on the same level as the male issue of the last owner along with the male issue or in default of them. It deals with property over which a Hindu has a power of disposition by a testament. Sub-section (2) of Section 3 of the Act of 1937 provides that when a Hindu governed by any School of Hindu Law other than Dayabhaga School or customary laws dies having at the time of his death an interest in a Hindu "joint family property", his widow shall, subject to the provisions of sub-section (3), have in the property same interest as he himself had.
A bare perusal of sub-section (1) and sub-section (2) would show that these provisions independently state about devolution of "separate property" and "joint family property" of a Hindu dying intestate leaving behind him widow/s. Both these provisions are subject to the provisions of sub-section (3), which provides that any interest devolving on a Hindu widow under the provisions of this section, shall be "limited interest" known as a "Hindu womans estate", provided, however, that she shall have the same right of claiming partition as a male owner. Sub-section (2) of Section 3 applies to his "interest in the joint family property" which would mean all other properties in which he had, under Mitakshara law, interest at the time of his death. The Act of 1937 puts a widow of a member of the joint family in the place of her deceased husband and the husbands interest in the joint family property under Mitakshara, though undefined, vest immediately upon his death on the Section 2 of the Act of 1937 provides that notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate. Therefore, wherever the provisions of Section 3 apply any other rule or custom of Hindu law that would otherwise applies, ceased to be governed by the parties, than such rule or custom must be ignored as being superseded by the Act. Sub-section (4) of Section 3 confers on the widow, the right of claiming partition of the joint family property in the same way as any other coparceners entitled to do so under the general law.
12. It is thus clear that the Act of 1937 introduced important changes in the law of succession and more particularly the rights of a widow. Her rights were augmented by introducing the provisions contained in Section 3 of this Act. This Act does not provide for or confer any right on any other woman in the family where a Hindu male dies intestate leaving behind him any property, either separate or his interest in a joint family property. Similarly, it does not make reference to any right of a daughter married or otherwise.
The layout of the Act seems to be consistent with the then Hindu culture and a joint Hindu family set up. The Hindu family set up was such that a daughter could not have inherited any property or a share therein of her deceased father, who left behind his son/s and/or widow/s. It appears that only in the absence of son/s and/or widow/s, a daughter could have inherited any property or a share therein. The Hindu culture and philosophy, as it then prevailed, strongly believed in the institution of marriage and that a daughter was inherently destined to be married into another family once she came of an age. This culture and philosophy was primarily because her marriage would entitle her to have a right in the joint family property of her husbands family or her husbands separate property. The concept of a daughter remaining unmarried forever was not either known or recognised. Therefore, this marks a possibility that no rights in a daughter were either conferred or recognised when the Act of 1937 was introduced.
13. The Hindu Succession Act, 1956 was introduced and the law relating to intestate succession amongst the Hindus came to be codified. By this Act and more particularly Section 14 thereof, whatever property was possessed by a woman whether acquired before or after the commencement of the Act of 1956, it shall be held by her as full owner and not limited owner. In other words, any property acquired and possessed by a Hindu woman, whether before or after the commencement of the Act of 1956, it shall be her absolute property. The concept of womens "limited estate" was abolished by this Act and she is given an absolute right in the property she acquired and possessed in its entirety, either limited or absolute, prior to or after coming into force of the Act of 1956. Section 15 of the Act provides for the general rules of succession in the case of female Hindus. The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 and in the order of succession mentioned in Section 15.
14. In the present case, according to the defendants, succession of Champubai will have to be determined under Section 15(1) of the Act of 1956 and not under Section 15(2)(a) thereof. This is because Champubai, who died issueless left behind her husband Mahadeo only and under Section 15(1) Mahadeo succeeded and inherited the property from Champubai, who inherited the said property from her mother by virtue of the Will-Exhibit-50. Both the courts below have upheld the submissions of the defendants in that regard and have denied the relief claimed by the plaintiff in the present suit.
15. Section 8 of the Act of 1956, on which a heavy reliance was placed upon by the appellant, also needs to be seen carefully. This section provides for general rules of succession in the case of males. The property of a male Hindu dying intestate shall devolve, according to the provisions of the Chapter II of the Act of 1956, in the order of succession mentioned therein. Section 8 provides that the property of such male Hindu dying intestate shall devolve; firstly, upon the heirs, being the relatives specified in class I of the Schedule; secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and lastly, if there is no agnate, then upon the cognates of the deceased.
Before 1937, the "simultaneous heirs" of a Hindu male dying intestate comprised only the son, the son of a pre-deceased son and the son of a pre-deceased son of a pre-deceased son. The Act of 1937 added to the list the widows of the first two as well as the intestates own widow. Class I of the preferential heirs in the Schedule, however, for the first time, added to the then existing list of simultaneous heirs, the daughter, and further seeks, as far as possible, to treat the other grandchildren of an intestate, whose parent has pre-deceased the intestate, on the same footing as the son of a pre-deceased son, except that in the former case the share to be divided among the children will be less than in the later case. This is made clear in the Statement of Objects and Reasons to Sections 8 to 10 of the Act of 1956.
The distinction between the daughter and the son in the matter of shares to be allotted to them after 1956 was accordingly modified. Section 8 may not, therefore, help the daughter to claim any right over the property of a widow, whether her natural or step-mother, came to her as "limited estate" under the provisions of the Act of 1937. Such a widow, who has acquired the property of her husband prior to the Act of 1956 came into force, holds that property as full owner and not as a limited owner under Section 14 of the Act of 1956. In the circumstances, Section 8 is of no avail to the appellant to claim any right whatsoever over the property of her father, who died intestate before 1956 and whose property devolved, as limited interest, upon the widow Bhikubai. Sectino 8 confers right on such daughter who is left behind by a male Hindu dying intestate after the Act of 1956 came into force.
16. That takes me to consider the relevant paragraphs in Mullas Hindu Law, to which my attention was specifically drawn to by the learned Counsel for the parties. Paragraph 43 provides for order of succession among sapindas. Note 4 to paragraph 43 deals with Widow whereas note 5 deals with Daughter. Note 5(i) provides for priority among daughter to succeed the property of a Hindu, either separate or his interest in a joint family property. It clearly provides that "daughters do not inherit until all the widows are dead". Rule 4 in note 5 of paragraph 43 provides that rule (ii) and (iii) do not apply in Bombay State. (See paragraph 72, No. 7 in Mullas Hindu Law (Seventeeth Edition). These rules in note 5 to paragraph 43 clearly show that the rule (i) is not excluded from its application in the Bombay State. In other words, rule (i) clearly applies to the males governed by Mitakshara in the Bombay State. Chapter VI of the Mullas Hindu Law provides for order of succession to males in the Bombay State. Paragraph 71 therein deals with succession in the Bombay State. The order of succession to males in the Bombay State is different from that in other parts of India where Mitakshara Law prevails. The difference arises from the fact that Bombay School recognises as heirs certain females who are not recognised as heirs in other parts of India. Paragraph 72 in Chapter VI provides for order of succession in cases governed by Mitakshara. It provides a list of 77 sapindas in the order of succession in the Bombay State. The list of first seven sapindas given in paragraph 72 reads thus:
1-6 Son, sons son (whose father is dead), and sons sons son (whose father and grandfather are both dead). These inherit simultaneously. Under Act XVIII of 1947 the widow, the predeceased sons widow, and the widow of a predeceased son of a predeceased son, are also recognised as heirs. (see para 43). See notes to para 43 nos 1-3 and 4.
7. Daughter. (See para.43, No. 5, notes (i), (iv), (v), (vi) and (vii)." A bare perusal of paragraph 43 with notes and the relevant rules mentioned therein would clearly indicate that "daughters do not inherit until all the widows are dead." (See para 43, No. 5 rule (i)). The contention that such note, that is, "daughters do not inherit until all the widows are dead" does not exist in paragraph 72 must be rejected. Paragraph 72 cannot be read in isolation and it will have to be read with paragraph 43, No. 5 notes (i),(iv),(v),(vi) and (vii). In the Bombay State, a daughter does not take a limited estate in her fathers property, but takes the property absolutely, provided there is no widow living at the time of the death of her father. It is only in that eventuality a daughter is entitled to take the property and if she takes that property, she takes it as her absolute property. If a Hindu governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her fathers estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. (See para 170).
A conjoint reading of paragraphs 43 and 72 clearly show that a daughter will take share in the property only upon the death of widow/s and not if she/they are living and when she takes the property after the death of widow/s, she takes the property absolutely.
Paragraph 176 deals with widows estate. It provides that a widow or other limited heir is not a tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. Her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but so long as she is alive no one has any vested interest in the succession (see paragraph 176). It further makes it clear that during the lifetime of a widow, daughters do not inherit her fathers property.
17. If one looks at the evolution of the law since 1937, it further supports the case of the appellant that prior to 1956 a daughter had no right in the property if a widow was alive. The Act of 1956 also does not confer any right on a daughter over the property succeeded/possessed by a widow prior to 1956. A daughter is entitled to succeed to the property of a female Hindu dying intestate under Section 15 read with Section 16 of the Act of 1956. However, if a widow, who was the exclusive owner of the property possessed by her when the Act of 1956 came into force, disposed of her property in whatsoever manner she desired, such as by way of will or gift, even to a stranger, daughters did not get any right in such property, even though she was first in the order of succession with sons under Section 15 of the Act of 1956. A plain reading of Section 15 would reflect that a female Hindu was entitled to the property left behind by a female Hindu dying intestate.
In other words, the property of a Hindu female, either widow or in her absence daughter, acquired/possessed by her, whether before or after the commencement of 1956 Act, either under the provisions of the Act of 1937 or according to Mullas Hindu Law, she would become the full owner thereof under Section 14 of the the Act of 1956, and not as limited owner. The property of such female would devolve according to the rules set out in Section 16 of the Act of 1956 in the order of succession mentioned in Section 15 if she dies intestate.
18. It, therefore, appears that in 1994 the Hindu Succession (Maharashtra Amendment) Act, 1994 was introduced and was brought into force on 22.6.1994. This Act, without any reservation, confers equal coparcenary right on the daughter as the son or any other male member has in a joint Hindu family governed by Mitakshara law. The Act of 1956 does not confer any coparcenary right in the coparcenary property on the daughter in a joint Hindu family, governed by Mitakshara law. Under Section 8 of the Act of 1956 the property of a male Hindu dying intestate devolves upon the heirs in the order of succession mentioned therein, includes daughter, but it does not confer coparcenary right on her. The Constitution of India proclaims equality before the law as a fundamental right and the exclusion of a daughter from coparcenary ownership merely by reason of her sex was against the constitutional mandate. The legislature found that such exclusion of a daughter has led to the creation of a social precarious dowry system with its attendant social evils. The Government of Maharashtra on 22.6.1994, therefore, announced a policy with a view to promote the welfare of women which, inter alia, provides for conferment of the same coparcenary right on the daughter as a son of coparcener in a Joint Hindu Family of Mitakshara law and considered it expedient to confer such right so as to achieve constitutional mandate of equality before law by suitably amending the Hindu Succession Act, 1956 in its application to the State of Maharashtra with a retrospective effect, that is, from the date of official announcement of the said policy. However, the amendments proposed are made inapplicable to the daughters married before the date of commencement of the Act.
19. From perusal of all the aforesaid provisions and even the Statement of Objects and Reasons of Section 8 of the Act 1956 and of the Act of 1994, it is clear that a widow, acquiring an interest in the property as contemplated under the provisions of Section 3 of the Act of 1937 and the Act of 1956, dying intestate, her property on her death reverts back to and/or merge into coparcenary. The daughter at any rate was never being treated as a coparcener under the Act of 1937, and hence was never to come in the scene vis-a-vis the undivided coparcenary interest that her father had and later which her mother acquired under Section 3(2) of the Act of 1937. Undoubtedly, it sounds very strange and it also pains that a natural daughter would not be entitled for any share in her fathers property as against absolutely stranger to the family, to whom the property is either bequeathed or gifted by a widow. Such stranger can take the entire property under such Will or gift deed. This is perhaps due to the typical Hindu family set up then prevailing prior to 1956 Act. Though the circumstances have now changed still we have to decide this appeal according to the provisions by which the parties were governed at the relevant time and though it may sound strange the judgment of the courts below will have to be confirmed.
20. In the present case, Yeshwantrao died in 1952 leaving behind him the plaintiff, that is, the daughter of the pre-deceased wife-Laxmibai and Bhikubai, the second wife, who died in 1970. Prior to 1956, Bhikubai, being the only widow of Yeshwantrao at the time of his death, acquired limited interest in his property. By virtue of the provisions of Section 14 of the Act of 1956 she became full owner of the suit properties. She bequeathed the said properties to her natural daughter Champubai by the registered Will dated 14.8.1956 (Exhibit-50). In view thereof, Champubai, though was entitled to inherit only a part of the suit properties left behind by Yeshwantrao in normal course, succeeded to all the suit properties of Yeshwantrao and after the death of Champubai, Mahadeo succeeded as per Section 15(1) of the Act of 1956. Mahadeo, thereafter, executed the registered Will dated 10.9.1976 (Exhibit-54) and bequeathed the said properties to defendant nos. 1 and 2 and that is how the plaintiff was deprived of the properties of her own father.
21. Next, I would like to consider the question raised by Mr Walawalkar, learned senior counsel for the appellant, based on Section 70 of the Act of 1925 that Whether Bhikubais Will in favour of her daughter-Champubai stood revoked by reason of her application to enter her name as the owner of said properties in 1966. He submitted that by applying to the City Survey authorities to have the name of her daughter-Champubai entered as the owner, Bhikubai indicated a clear intention to revoke the Will. He placed reliance upon the judgment of this Court in Laxman S/o Tukaram v. Smt Bendrabai wd/o Tukaram Karwate and Anr. . On the other hand, Mr Kumbhakoni, learned Counsel for the respondents, submitted that merely because Bhikubai made the application to the City Survey authorities does not mean she intended to revoke the Will. Making an application to the City Survey authorities would, at the most, show her anxiety and not the intention to revoke the Will.
22. Section 70 of the Act of 1925 provides for revocation of unprivileged Will or codicil. Under this provision, no unprivileged Will nor any part thereof, stands revoked otherwise than by marriage, or by another Will, or by some writing declaring an intention to revoke the same, apart from other acts, such as tearing or destroying the will by the testator or by some person in his presence and by his direction with the intention of revoking the same. In other words, Will does not stand revoked unless a testator declares his intention by some writing, besides the other acts/modes mentioned in Section 70. Making an application to city survey authorities for entering the name of Champubai, in the present case, by Bhikubai during her life time, cannot even remotely be treated as declaration of the intention to revoke the Will executed in favour of Champubai. It cannot be treated as a writing declaring an intention to revoke the Will inasmuch as the writing does not say so or indicate such intention either directly or indirectly. In the circumstances, this submission of Mr Walawalkar must be rejected. The Wills, executed by Bhikubai and Mahadeo, were not challenged before me and in view thereof the concurrent findings of both the courts below treating the Wills as valid, stand confirmed.
23. At this stage, let me consider the judgment of this Court in Laxman v. Smt Bendrabai (supra) upon which Mr.Walawalkar, learned senior counsel for the plaintiff, placed heavy reliance upon to contend that the point involved in the present appeal is squarely covered by the said judgment. He submitted that very same paragraph 72 in Chapter VI of Mullas Hindu Law and Section 3 of the Act of 1937, on which a heavy reliance upon was placed upon in the present case, was considered by the learned Single Judge in that case and in similar facts and circumstances held that the daughter is entitled to one-half share in the property of her father, who died before the Act of 1956 came into force. He submitted that in view of the judgment in this case, this appeal deserves to be allowed holding that the appellant-plaintiff is entitled for one-half share in the properties of Yeshwantrao. On the other hand, Mr Kumbhamkoni, learned Counsel for the defendants, submitted that the case in hand should be determined on the facts and circumstances of this case only and the facts arising in Laxman v. Smt. Bendrabai should not be plainly treated as a precedent to determine the conclusion in the case in hand merely because the facts are similar. He submitted that the provisions of paragraphs 43 and 176 were not considered by the learned Single Judge in that case. The judgment of the learned Single Judge does not declare law on the point involved in the present case and in view thereof, the said judgment would not have a binding precedent. In support of this contention he placed reliance upon the judgment of the Supreme Court in Ramesh Singh v. State of A.P. .
24. The learned Single Judge of this Court in Laxman v. Smt Bendrabai was dealing with two second appeals arising from the decree of partition and separate possession. In this case, one Tukaram died leaving behind him two widows, namely Janabai and Bendrabai, and Padminibai, the daughter of pre-deceased wife Narmadabai. Tukaram died on 9.3.1955. Janabai adopted Laxman on 18.6.1955 with the consent of her co-widow Bendrabai when Laxman was hardly 3 years old. Janabai died on 17.2.1981. Bendrabai and Padminibai instituted a Regular Civil Suit against Laxman for partition and separate possession of the suit property contending that after the death of Tukaram one-half share of his property was inherited by Padminibai and one-half share by Janabai and Bendrabai together. After Janabais death, Bendrabai and Padminibai became owner of half share each in the suit property and that Laxman, who was adopted by Janabai, has no right whatsoever in the suit property. In this case also parties were governed by the Bombay School. The Court proceeded on the assumption that the property of Tukaram was his separate property. It is against this backdrop, the learned Single Judge in paragraphs 13 and 19 observed thus:
13. ... Tukaram died on 9.3.1955 intestate. Tukaram left behind him two widows viz. Janabai and Bendrabai and daughter Padminibai (the daughter of his predeceased wife Narmadabai). Under the provisions of Section 3(1) of the Hindu Womens Right to Property Act, 1937, Janabai and Bendrabai together were entitled to one-half share in the property to the exclusion of Padminibai and Padminibai was entitled to one-half share under Section 72 in Chapter VI of Mullas Hindu law. Under Section 3(3) of the said Act, the interest devolved on Janabai and Bendrabai was a limited interest known as Hindu Womens estate. It may be noted that Janabai and Bendrabai never claimed partition amongst themselves.
19. On 19.4.1999 Bendrabai died. She died intestate. She left behind her step son Laxman and step daughter Padminibai. They being step son and step daughter would not inherit her under entry (a) of Section 15(1) of the Hindu Succession Act, however, they would inherit her as the heirs of her husband Tukaram under entry
(b) of Section 15(1) of the Hindu Succession Act. Under Rule (1) of Section 16 of the Hindu Succession Act, Laxman and Padminibai would take simultaneously. So Bendrabais 1/6th undivided share would devolve on laxman and Padminibai simultaneously. Laxman would get undivided 1/12th share and Padminibai would get undivided 1/12th share. Thus in the entire suit property, Laxmans share would be 1/2 + 1/12th = 7/12th and that of Padminibai would be 1/3rd + 1/12th = 5/12th. The judgment and decree of the appellate court will have to be modified to that extent." It is thus clear that the learned Single in this case mainly relying upon the provisions of Section 3 of the Act of 1937 and paragraph 72 of Mullas Hindu Law as also other relevant provisions of the Act of 1956 held that daughter also has a right in the property left by her father, who died prior to 1956.
25. Looking to the provisions of the Act of 1937 and the Act of 1956 as also different paragraphs in Mullas Hindu Law, I am unable to agree with the view expressed by the learned Single Judge in Laxman v. Smt Bendrabai for the reasons recorded in the foregoing paragraphs. The learned Single Judge in that case, in almost similar situation, held that the daughter of pre-deceased wife is entitled for share in the property of her father, who died prior to 1956, relying upon the very same provisions on which a heavy reliance was placed upon by the learned Counsel for the defendants. Under the circumstances, I am left with no alternative but to make reference to the Larger Bench of the question framed in the first paragraph of this judgment.
26. In the circumstances, the Additional Registrar (Judicial) is directed to place the matter before the Honourable Chief Justice for suitable direction to constitute a Bench to decide the question of law formulated in the first paragraph of this judgment.
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