Lakshmipriya Maity vs Parasuram Maity and Others

A.M. Bhattacharjee, J.—Under the Shastric Hindu Law of Inheritance, whether Mitakashara or Dayabhaga, the property of sonless Hindu male dying interest was to devolve on his widow and then on his daughter if any. That was the text in Vishna-Samhita - "Aputrasya Dhanam Pathnyabhigami, Tadabhabe Duhitrigami" the wealth of a sonless person goes to the wife, in her default, goes to the daughter". The more celebrated text of Yahnavalkya is "Patni Duhitaraschaiba Pitarau Bhratarastatha Aputrasya Sar-bavamesu Ayam Bidhi" the wife, the daughter, both parents, brothers etc. are the heirs of a person dying sonless and on failure of first among these, the next in order suceeds. The widow, the daughter and other female heirs were however to acquire life-estates only in the properties left by the deceased. Even the Hindu Women''s Rights to Property Act, 1937, did not bring about any change is the law as aforesaid in respect of inheritance to properties left by a sonless Hindu male. But it however ameliorated the position of the widow by providing that not only where the deceased died without a son, but even when there was a son, the widow "shall be entitled to the same share as a son". The son, therefore, could no longer exclude widow from inheritance, but continued to exclude the daughters, until the enactment of the Hindu Succession Act, 1956, whereunder all of them, the son, the dauhter and the widow, now inherit in equal shares.

In the case at hand, the deceased who was sonless, died in 1940s leaving a widow and a daughter. As a result, even without the aid of the provisions of the Act of 1937, the widow inherited the property, though only in life-estate. The widow died in December, 1955 before the enforcement of the Hindu Succession Act, 1956 with effect from June, 1956. If she could die thereafter, she would not have remained a mere holder of life-estate, but would have become a full owner of the properties inherited from her husband and on her death, the daughter would have inherited the same as full owner. But even then, as already indicated, under the law as it stood before the Hindu Succession Act of 1956, on the death of the widow even in 1955, the daughter would have inherited the property as the heir of her deceased father and the next reversioner.

That being the position, we would have agreed with Mr. Roy Chowdhury, the learned Counsel for the Review-petitioner, that the filing in the impugned judgment sought to be reviewed to the effect that the widow having died in December, 1955, the daughter would not succeed as an heir and would acquire no interest in the property inherited by the widow is not only erroneous, but as an error apparent on the face of the record.

Notwithstanding the repeated pronouncements by the Privy Council, the Federal Court and now the Supreme Court in review, matters'' under Order 47 of the Code of Civil Procedure, in arbitration matters u/s 30 of the Arbitration Act or in the Certiorari Jurisdiction, the import of the expression "error or certainty to prevent a Court from tailing itself in error in holding an error to be error apparent. As pointed out by the Supreme Court in Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, however real the distinction is, "it might not always be a decision which could be characterised as vitiated by ''error apparent''. There may not be much difficulty in a theoretical appreciation of the distinction, but difficulties may very often arise in its practical application. From the myriads of case-laws clustering round these expressions, not often easy to reconcile, this much, however, is clear that, as pointed out in Thungabhadra Industries (supra), "where without any elaborate argument one could point to the error" and show that there is such a substantial error of law which stares one in the face and there could reasonably be no two opinions entertained about it and on which the impugned decision is grounded, a clear case of error apparent would be made out to warrant review. The way the matter was placed before us by Mr. Roy Chowdhury appeared to have satisfied this test for, as already indicated, if the case was governed by the Hindu Law of Inheritance, there could be reasonably no two opinions that the daughter was, under the law, entitled to succeed on the death of her widow-mother and the very, foundation of the impugned decision would ex facie have Deen subsequentially erroneous. And in that view of the matter, we would have, with great respect to the learned Judges who rendered the impugned judgment, granted review.

But as pointed out by Mr. Mukherjee, the learned Counsel for the opposite parties, the property in dispute was a coparcenery property governed by the Mitakshara School of Hindu Law in which the last male holder had only an undivided copercenery interest. And that, in our view, would make all the difference.

The last male holder having died after the enforcement of the Hindu Women''s Rights to Property Act, 1937, the widow acquired, u/s 3(2) of the Act, "in the property the same interest as he (i.e. her husband) himself had". If the widow was to have the same interest as her husband had, and her husband obviously had the interest of a Mitakshara undivided co-parcener in the coparcenery property, one would have thought that the widow would thus become a co-parcener, in the place and stead of her husband. It may not be quite easy to appreciate as to how a widow would have the same interest her coparcener husband had, namely, the community of interest, unity of possession, the undivided interest to fluctuate with future deaths and births, the capacity to put an end to the coparcenery itself by claiming partition, but would still not to be treated as a coparcener, except on the basis of the old obsessive thesis that a female can never be coparcener. But in view of the decisions of the Supreme Court in Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, and in Satrughan Isser Vs. Smt. Subujpari and Others, it must be taken to be settled that a widow, even on acquisition of the interest that her husband had in Mitakshara coparcenary u/s 3(2) of the Act of 1937, does not become a coparcener thereof and she does not acquire such interest by survivorship, or by inheritance, but by statutory transmission.

But even though the widow was not a coparcener strictosensu, if she, after acquisition of such interest, died without enforcing partition, then the interest that she acquired in the coparcenary property was, on her death, to revert back and merge into the coparcenery. The daughter, at any rate, never being treated as a coparcener either under the earlier Hindu Law or under any Statutory modification thereof, was never to come in the scene vis-a-vis the undivided coparcenery interest that her father had and her mother later acquired u/s 3(2) of the Act. If, however, the widow claimed and enforced partition, she would have stood severed from the other coparceners and the coparcenary, her share, though a life-estate, would have become defined and ascertained and separate and would have devolved on the daughter, as the heir of her husband. That being not the case here, the learned Judges were right in holding that the daughter could claim no interest, whether by succession or survivorship or otherwise.

We accordingly find no ground to warrant any review of the impugned judgment and would dismiss the petition. No costs.

A.K. Nandi, J.

I agree.