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Judgment
Mockett, J.—This Civil Revision Petition raises a question under the Court-Fees Act and also under the Hindu Women''s Rights to Property
Act of 1937. The facts are very simple. A coparcener died leaving a widow and she has filed a partition suit, as she is entitled to do under Act
XVIII of 1937. The court-fee examiner took the view that the plaint was on the basis that the plaintiff was out of possession; that she is therefore
to be treated as a coparcener excluded from possession and therefore court-fee u/s 7(5) should be paid. The learned Subordinate Judge
disagreed, and I think rightly, with the court-fee examiner. He held that that the plaint could not be so regarded. It is not quite clear what view the
learned Subordinate Judge took of the plaint as he held that the suit was in fact by a person out of possession. Personally, I find no difficulty about
it at all. In spite of the not uncommon, inartistic drafting, I think it is in substance an ordinary claim for partition, and if this had been a male
coparcener no question could have arisen. In other words, Article 17(b) of Schedule II would apply. But the learned Subordinate Judge has taken
the view that, in spite of the wording of the Act, a Hindu widow who brings a suit for partition under the terms of the Act is always to be
considered as a person out of possession. I can find nothing in the Act which suggests that position.
Sub-section (3) of Section 3 says:
Any interest devolving on a Hindu widow under the provisions of this section should be the limited interest known as a Hindu widow''s estate,
provided however that she shall have the same right of claiming partition as a male owner.
What I am concerned to consider is her claim in the plaint, which is quite clearly described in the Act as the same right of claiming partition as a
male owner has. That being so, I can see no reason whatever why she should not base her plaint on the same position as a male owner, namely, as
a coparcener in possession, unless there is an allegation that she has been kept out of possession or was out of possession in some other way.
There is, in my opinion, nothing whatever in the Act which Suggests, in the words of the learned Subordinate Judge, that a Hindu widow does not
acquire the status of a coparcener. That she may not acquire the full rights of a coparcener is no doubt clear because these rights are limited to the
words of the Act--a Hindu widow''s estate--but that she acquires full status for the purpose of filing a suit, I have no doubt. The result is that the
Civil Revision Petition will be allowed. The court-fee payable will be under Article 17(b) of Schedule II. There will be no order as to costs as the
respondent was in no way responsible for the lower Court''s order.