CommiJsioner ef v. B•i S;irU..«i

Held, that the adoption of Rajkumar was valid. A son• the express less Jain widow could adopt a son without authority of her husband. Such a custom among the Jains (not domiciled in the States of Madras and the Punjab) has been recognised by judicial decisions spread over a period longer than a century. Though none of these decisions rela~ . parties belonged. They laid down a general custom of the Jains which were applicable to the parties. The decisions proceed ed not upon any custom peculiar to any locality or to any sect of the Jains but upon general custom which had by ·1ong acceptance become part of the. law applicable to them. Where a custom is repeatedly brought to the notice of the Courts, 1he courts may held that custom introduced into the law without the necessity of proof in each individual ca5 e. sect of .Jabalpur to which Pemraj v. Mst. Chand Kanwar, (1947) L. R. 74 l. A. 224 and Mangibai Gulabchand v. Suganchand Bhikamchand, A.LR. (•1948) P. C. 177, relied on. Sheokuarbai v. Jeoraj, A.LR. ( 1921) P .C. 77, Sara<wathi Ammal v . .Jagadambal, (1953) S.C.R. 1939, Maharajah Govind· nath Ray v. Gulal Chand, (1833) 5 Se!. Rep. 276, Bhag1vanda,s Tejmal v. Rajmal Alias Hiralal Lachmindas, (1873) 10 Born. H.C. Rep. 241, Shea Singh Rai v. Mst. D~<ho and Moor, iri Lal (1878) L.R. 5 I. A. 37, Lakhmi Chand v. Gatto Bai, (1886) I.L.R. 8 All. 319, Manik Chand Golecha v. Jagit Settani, (1889) I.L.R. 17 Cal. 518, Hn' nabh Pershad alias Rajajee v. (189q) I. L. R. 27 Cal. 379, ManohmLal v. Ma.ngilDa<, Banarsi Das (1907) I. L. R. 29 All. 495,_Asharfi Kttnwar v. R?tpchand, (1908) I.L.R. 30 All. 197, Rup Chand v. Jambu Prasad (1910) I.L.R. 32 All. 247,.Jiwraj v. Mst. Sheokuwarbai, A I.R. (1920) Na<!. 162, Ranarsi Jlas v. Sttmat Prasad, (1936) I.LR. 08 All. 1019 and Rama Rao v. Raja of Pittapnr, (1918) L. R. 45 I. A. 148, referred to. \ Hold, further that the !/4th share of Smt. K declared by the preliminary decree was "possessed" by her and on h~r 1162 .. S. S. 1lfunuo L..l .~'. S. Rajhi-mar Shoh J. 420 SUPREME COURT REPORTS [1962] SUPP. death it descended to her grandsom in accordance with provi sions of ss. 15 and 16 of the Act. The word "possessed" in s. 14 was used in a broad sense meaning the state of owing or having in one's power. The rule laid down by the Privy Council that till actual division of the share declared in· her favour Ly a preliminary decree for partition of the joint family property a Hindu \vife or mother was not recognised as owner of that .share cann.ot apply after the enactment of the Hindu Succes sion Act, 1956. Section 4 of the Act made it clear that the Legislature intended to supersede the rules of Hindu law on all 1nattcrs in respect of which there \Vas an express provision made in the Act. (luTn11lapura Tag(/inn Jfafada Kotf'uru1tu·ami v. i..9tfrn Ve.rayya, f 1959) 1 Supp. S.C.R. 968 and Pralqpmull Agaruvtf/a v. Dliarwbali Bibi, (1935) L.R. 63 I.A. 33, referred.to. C1nL APPELLATE JuRISDICTI01' : Civil Appeal No. 130 of 61. Appeal by special leave from the judgment and decree datNl April 25, 1959 of the Madhya Pradesh High Court in First Appeal N"o. 139 of }9;)5. M. C. Sek!lvad, ,!tt, orney-Gentral of India, 8. T. Desai, J. B. Dadaclumji, 0. C. Jfatku,- und Ravinder Narain, for the appellants. Saijoo Pra8ad and G. C. Jfathnr, for respon dents ~o. I and 2. (}anpat Rai, for respondent Xo. 3. 196:1. February 23. The Judgment of the Court was delivered by SHAH, J.-This appeal with special le&ve i8 against the decree of the Madhya Pmdesh Hir;h Court confirming the decree of the 1st Additional District. Judge, Jabalpur in Civil Suit No. 12-A of 1952. The dispute between the p&rties arose in a suit for partition of joint family property. The parties are Digambar Jains of the Porwal Sect and ~ro residcntl! of Jabalpur which at the material time 3 S.C.R. SUPREME COURT REPORTS 421 was in Madhya Pradesh. The following pedigree explains the relationship between the parties : Garibdas=Mst. Khilonabai d. 24. 7 .34 (Def. 3) d.3. 7 .56 I I I Gulzarilal I d. 13.4.39 IY6S S. S. Munna Lal . . v. S. S. Rojkumar Shoh J. I ,\. uunalal (Def. 1) I Padamchand d.10.1.36 Ramchand Pyaribahu widow Bhu1ibai (Def. 4) I I I (Def. 11) · I Adopted son Rajkumar I Saheblal Ballu Nand I (Plaintiff) (dead) (Def. 5) (Def. 6) (Def. 12) adopted 26.7,52 I Ishwari Prasad (Def. 7) I · Hiralal Kumar I I I (Def. 2) Chandrani (Def. 8) I I I I I • • I Rajendra Kumar (Def. 9) I Abbay Kumar (Def. lO) Saheblal son of Munnalal filed Suit No. 12A of 1952 in the Court of the 1st Additional Subordinate Judge, Jabalpur on June 21, 1952, for a decree of partition and separate possession of his l/12th share in the joint family property. He claimed that in the property his father's branch was entitled to have a half share and the remaining half was owned by 1962 S.S. Mun11a Lal •• S. S. Rqjkumar Shah J. 422 SUPREME COURT REPORTS (1962] SUPP. Ram Chand and his branch. The Additional Dist· rict Judge ordered, that Khilonabai grandmother of llfonnalal and 1'.amehand-the wivrs of ?llunnalal and Ramehand and their sons· and Bhuribai (widow of Padamchand) and Hajkum.ar who chimed to be a son of Padam Chand by adoption by Bhuribai on July 26, 1952, be implcadc<l as defendants to the suit. At the trial l>f the suit the right of Saheblal to a share. in th<' property was not qm·stioned: tho dispute principally turned upon the claim made by Bhuribai and her adopted son Rajkumar to a share in the property. Padamrhand had died before tho enactment of the Hindu Womens' Right t-0 Property Act, 1937, and his widow could not claim by virtue of that Act a share in the property of the family. But Bhuribai and Hajkumar pleaded that the par ties were governed in the matter of adoption by the customary law prevalent amongst the Jains of Cen ;\ladhya Pradesh, Vindhya Pradesh, North and W('stern India, and Hajkumar as a son adopted by Bhuribai to Padam Chand became a coparcener in the joint family a11d entitled to a share in tho property and accretions thereto. India, The validity of the adopt.ion of Rajkumar was challenged 011 many grounds, one only of which is material in this appeal. It was submitted hy the conte5ting defendants and Bhuribai had no authority exptess or implied from her husband Padam Chand to adopt a son and that the adoption of Rajkumar as a son without such authority was invalid. 'lhe Additional District Judge rejected this plea and ordered a preliminary decree for par ti ti on and declared that the share of the plaintiff was I/24th, of ;\Iunnalal, his wife and _3 sons eolleutivoly was 5/24th, of l~amchand and hlB sons l/4th, of I /4th and the remaining l/4th share Khilonabai belonged to Iiajkumar. 1962 - · - 8. S. Munna Ltl v. S.S. Rajkumar Shah J. il S.C.R. S:UPREME COURT REPORTS 423 pendency July 3, Against the decree, Munnalal, Ramcha~d, Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High Court of Madhy.a Pradesh. During appeal Khilonabai died 1956 and Ramchand and Munnalal applied to be implea~ · ded as her legal representatives in respect of the in terest in the property awarded to Khilonabai by the preliminary decree. By order dated December 12, 1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of ss. 15 and 16 of the Hindu Succession Act, 1956 which was brought into operation on June 14, 1956, and that the sons of Munnalal, Rarnchand and Padam Chand could not take a share in Khilonabai's interest. Before the High Court two questions were canV:assed: (1) as to the factum and validity of the adoption of Rajkumar, and (2) devolution of the share of Khilonabai declared by the . preliminary decree on her death. The High Court upheld· the finding of the trial Court that Rajkumar was in fact adopted by Bhuribai as a son to her husband on July 26, 1952, and that amongst the Jains residing in the North West Province, Central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in In so holding the High Court relied that behalf. judgments of the Privy Council in Pemraj v. Mst. Ohand Kanwar and Mangibai Gulabchand v. Suganchand Baikamcand (1:. But the view of the High Court declined to accept the trial Court that the right ofKhilonabai declared by the preliminary .decree devolved upon Munnalal and Ramchand alone. In their view, Khilonabai's interest under t.he decree being incohate was not "possessed" by her within the meaning of s. 14 (1947) L.R. 74 I.A. 254. (I) (2) A.i,R. (1948) P.C. 177. 1962 8 S. !llwmo Loi v. S. ). Rojlnanir :>hoo J. ' 424 SUPREME COURT REPORTS [1962) SUPP. of the Hindu Succession Act, 1956, and on her <loath it merged into the cstato, The High Court observed : "The result is that the interest of Smt. Khilonabai remained incubate am! fluctuating ,o that after her death, the interest decla1cd by the preliminary decree is available for partition as joint family property and consequently ss.lii and lt.i of the Hindu Succession Act arc inapplicable to tho interest. As the property never became her absolute property by virtue of s.14 of the Act, the same remained joint family property." Accordingly the decree of the trial Court was modified and l /:kd Share in the joint family property was awarded te Rajkumar, l/:!rd to the branch of :IIunnalal u11d the remaining 1 /:Jrd to the bra11ch of Ramchaud and adjustments were made on that footing in the shares of the plaintiff and other membors of the family. In this appeal by defendant Xo. 1 (~lunnalal) 2 (Ramchand) and 4 to 10, three contentions were raised : (1) in the absence of express authority from her husband, Bhuribai could not adopt a son, (2) that the interest of Khilonabai under the preli· minary decree became her absolute property by virtue of s.14 of the Hindu Succession Act, 195ti and on her death it devolved upon her giandsons Munnalal and gamchand-defonctants I and 2-and (3) the trial Court was in error in delegating to a Commissioner judicial function, such as, a.llcertain ment of property to be divided and effecting parti tion. The third question is easily answered. The trial court appointed a commissioner to propust a partition of joint family propt>rty, and for that pur· pose the court authorised bim to ascertain the property, the debts which the family owed and also tho mdividual liability of the parties for the debts. For deciding those questions the Commissioner was empowered to record statements of th& part ics, frarue 196~ S. S. llfuna Lal v, S. S. Rajkum'°r Shah J. a S.C.R. SUPREME COURT REPORTS 42/i property, to submit his proposals issues and to record evidence as might be necessary. The commissioner waR also directed to submit his proposals relating to the right of Bhuribai to b.e maintained out of the joint family property. This order, it appears, was passed with the consent of all the parties. It is true that the decree drawn up by the trial Court is not strictly in accordance with the directions given in the judgment. But it is manifest that the trial Judge only directed the Commissioner partition purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family. By so authorising the Commis>ioner, the trial Court did not abdicate itR functions to the comissioner : the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the Court would &djudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the commissioner cannot f1 om their very nature be binding upon the parties nor the reasons in support thereof. The order it may be remembered was made with the consent of the parties and no objection to the order was, it appears, pressed before the High Court. We do not think that any case is made out for modifying that part of the order. Jains have generally been The parties to this dispute are Digamher J ains of the Porwal sect and are resident of Jahal pur. regarded as heterodox Hindus and in the absence of special custom they are governed by the rules applicable to Hindus. As observed by the Privy Council in Sheokuarbai v. Jeorafj.(') The Jains are of Hindu origin ; they are Hindu dissenters, and although as was pointed out by Mr. Mayne in paragraph 46 of his Hindu Law and Usages-"Generally adhering to ordinary Hindu law, that is, the law of the three (I) A.I.R. (1921) P.C. 77. 19~

#8. S. llumaa Lal v. S, S. J, n)kt.mOT Shah J. 4Hi SUPREME C'OURT REPORTS (1962] stJPP. x x x In Pemraj v. superior castes, they recognise no divine authority· in the Vedas and do not practise tht: ·Shradhs, or cere111ony for the dead." "The due performance of the Shradhs, or religious ceremonies for the dead, is at the baso of the religious theory of adoption, but the Jains have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contra1y usage x." But amongbt the Jains a x custom enabling a widow to adopt. a son to her husband without express authority has been reco gnised by judicial decisions spread over a period longer than a century. ,}f'U8Gmmad Chand Kanwar(:), the Judicial Committee of the Privy Council after •a review of the case law obse~ved : "x x, in many other parts of India" (parts other than the Provinces of Madrae and the Punjab) "it has no"" been established by decisions based on evidence from widely separated districts and from different sect.s that the Jains observe the custom by which a widow ·may adopt to her hus band without his authority. This custom is based on religious knants common to all sects of Jaine, and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband may be affected by the adoption, and though it cannot be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none oft.he cases has a distinction been drawn between one sect and another. It is now in their Lordships' opinion no longer premature to hold that the custom prevails generally among all Jaine except in those areas in which there a1 e opccial reasons, not operative in the rest of India, which explains why the custom has not established itself, Mayne, in his treaties on Hindu Law and Usage, at pai:o 209, has lent the weight of his authority to the proposition that among the Jains, except in tho MadraH Presidency to her a sonless widow can adopt a son (l) (1947) L.K. 74 LA. 2$4. 1962 S.S. Munna. Lal v. 8. S. Rajkwnar Shah J. 3 s.c.:R. SUPREME COURT REPORTS 427 husband without his authority or the consent of his sapindas". This view was reiterated by the Privy Council in a case reported in Mangibai Gulabchand v. 8uganchand Bhikamchand ('). to which The Attorney General for the appellants, however, contends that there is no evidence of a custom authorising the widow of a Porwal Digam ber Jain residing in Jabalpur to adopt a son to her husband without express authority. Counsel sub mitted that the observations in the two cases relat ing to the custom of adoption must be restricted to the sects the parties to these cases belonged, and in so far as they purport to extend the custom to all Jain residents in India outside Madras and the Punjab they are mere d!cta and not binding upon this Court. In Pemraj's case the parties belonged to the Khandelwal sect domiciled and resident in Ajmer and in Mangibai's case the parties were Marwari Jains of the Vis-Oswal sect who having migrated from J odhpur had settled down in the Thana District of the Bombay Province, but the opiniun of the Judicial Committee expressly proceeded upon a well-recognised custom applicable to all Jains in the territory of India (excepting Madras and the Punjab) and not upon proof of a restricted custom governing the sects of Jains to which the parties belonged. Undoubtedly, as obser ved by this Court in 8araswathi Ammal v. Jaga damhal (') in dealing with the quantum of proof rvquired to prove a family or local custom, "it is incumbent on a party Retting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any customs applicable to the, parties concerned that can be the rule of decision in a particular case. x :x: x (2) {1U53) S.C.R. 939. (1). A.J.R. (1948) P.C. 177. J96Z S.S. Munna l<il v. S. 8. R~ikwnar Shall J. 428 SL.il>REME COGRT REPORTS [1962] SUPP. Theory and custom arc antitheses, custom cannot be a matter mere of theory but must always be a mat ter of fact and one custom cannot uo cleductcd from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the cummunity living in another district is necessarily following the same custom." But the application of the custom to tho parties to this .appeal does not appear to proceed upon analogies or dcductioDS. It governs the parties, because the custom has become a part of the law applicable to Jains in India (except in Madras and the Punjab) by a long and uninterrupted course of acceptance. . A review of the cases decided by difforent Courts clearly shows that the custom is generally applicable to Jains all over India, except the Jain domiciled in Madras and the Punjab. The earliest case of which a report is available is Maharaja <iovirulnatli Ray v. &'uld Charul (') decided by the In that case the Saddar Court Calcutta in Hl33. validity of an adoption by a Jain widow of a sou without express authority from her husband was questioned. The Court after consulting the Pundits held that by Jain law a sonless widow could adopt a son just as her husband for the performance of religious rites and that the section of the 1;itis or priests to tho adoption In Bhagwanda,s Tejm1.Jl v. Rajrnal aliasliiralal Lachmidas(') tho Bombay High Court opined that the widow of a Jain was a delegate either by express or implied authority to adopt a son, but she could not d.,logate to another person that authority to adopt a son to In Shea Sirujh Rai v. her husband after her death. M U&1-Umut Dakho flnd ~ti oorari Lal, ( ') decided in I 878, the Privy Council affirmed the view of .the North West Provinces High Court that a sonle~s widow of a Jiiin had the right of adoption with out the permission of her husband or the consent is not essential. ii) (1833) 5 Sel. Rep. 276. (2) (1873) 10 llom. H.C. Rep. 211. (3) (1878) L.R. 51.A. 87 • l:Jb2 S. S. iJ'Iurina L'll v. S.S. Rajlcnml'r 3 S.C.R. SUPREME COURT REPORTS 429 In that case before the Subordinate of his heirs. Judge and bC;fore the High Court evidence was recorded of the custom applicable to Jains general· ly, in different place such as Delhi, Jaipur, Mathura, Banaras and it was held that the custom was established by evidence. The parties to the suit were Agarwal Jains of Meerut District, but deci si"n uf tho Board proceeded upon a custom found on e ,•idence to be common to all J a ins. In Lakhmi, Chand v. Catto Bai. (') decided in 1886, again the power of a Jain widow to adopt a son to her deceased In Jlilanik Chand Golech'l hmband was held proved. ) decided in l 889, the High Court v. J agat Settani, ( 2 of B"ngal upheld a r.ustom in respect of adoption by a widow of an Oswal Jain. Tho deci8ion of the Court did not proceed upon any custom peculin,r to In Harnabh Pershad alias Rajajee v . the Oswal sEct. ./J1ang·il Das(') decided in 1899, it w>is held upon the evidence consisting partly of judicial decisions and partly of oral evidence that tho custom thl]-t a sonless Jain widow wn,s competent to adopt a son to her husband without his permission or tho consent of his kinsmen, was sufficiently established and that in this respect there was no material difference in the custom of the A!l'garwal, Choreewal (Porwal), Khandwal and Oswal sects of the Jains ; and that there was nothing to differentiate the Jains n,t Arrah from the Jains elsewhere. The judgment of the case proceeded upon an elaborate examina tion of numerous instances in which the custom was held established. In Manohar Lal v. Banarsi Das(') and in A8 ha1ji K1tnwar v. Ru.pchanrl(') a similar castom was held esta.hlished. In the latkr ca, se a large number of witnesses were examined at different places and on a th0 decisions and the evidence the Court held the m1stom proved. ' The judgment of the Allahabad review of (l) (1886)1.L.R.UAl\.319. (3) (18991J.L.R.27 Cal. 379. (2) (188'lJl.1-.R.17Cal.5<8. (4) (1907) 1.1 .. R. 29 All. 495. (5) (1908) J.L.R. 30 All. 197. .. l 19fi2 S.S. Munno LaJ v. S. S. Rajkumor Shah J. 430 SUPREME OOURT REPORTS [19e2) SUPP. the Privy Council. in Slieokuarbut v . .Jr.oraj ("). .-1sharfi's case was affirmed by the High Court in .Jamim Prasod. ( r) Privy Council in R11p Chand v.· It may be stated that the right of a .Jain widow to adopt without authority of her husband was not Iu Jiwraj questioned before v. Jft. Sl/R/Jhw:ar/J(Ji (') the Court of the Judicial Commissioner, ~agpur held that the permission of the husb1ind was not neceHSary in the case of a Jain widow. to adopt a son. This c'l.Be was also carried to the Privy Council and the judgment was affir In Banarsi Das v. Samat Prasad(') a similar custom was held estitblishcd. The decisions in all theRe c&Bes pro ceeded not upon any custom peculiar to the locali ty, or to the seet of .fains to which they belonged, but upon tho view that being Jains, they wore govern1•d by the custom which had by long accep· ta.nee law applicable to hecome part of them. It is well-settled that where a custom is repeatedly brought to the notice of the Courts of a countrv, the courts mav hold that custom intro· duced into the law without the neceBSity of proof individ1ml case. (Ramn. Rno v. Raja of in each Pitlapnt) (•). The plea ahout the invalidity of the 1ldoption of Rajkumar by Rlmribai must therefore fail. Khilonabai died after the Hindu Succession Act was brought int·o operation on June 14, l!l51l. This Act by s. 2( I )(b) applies to Hindus and also to persons who arc ,Jains by religion. The preli minary deer"e was passed on .July ~9, 195.5, and t.J.ercby Khilona.hai wa.s declared entitled to a fourth Hhare in the property of the family. Section 14 of ,,f the Hindu SuccoHsion Act, l!l51l provide~: •'14(1) Any property possessed hy a fomalo Hindu, whether acquired before or after the commencement of this Act, ahall be 11) (19IOJ [.J..R. 32All.1f7. <3) A.!.R. (1921) P.C. 7; 121 A.I.R. (1920\ Nag.162. (4) (1936) l.1-R 58 All.1019. (5) (1918) L.R. 4 5 I.A. 11~. ' 3 S.C.R. SUPREMJJ: COURT REPORTS 431 1961 S.S MunnaLal v. S. s. Bajlcumar Shah J. held by her as full owner thereof and not as a limited owner. EXPLANATION. In this sub-section "pro perty" includes both movable property acquired by a female Hindu by inheri tance or devise, or at a partition, or in lieu of maintenance or arrears of maint enance, or by gift from any person, whe ther a relative or not, before, at or after • her marriage, or by her own skill or exer ti-On, or by purchase or by prescription, or in any other manner "hatsoever, and also by such property held by her as stridhana immediately beforn the commen- cement of this Act. · (2) Nothing contained in sub-section ( l) shall apply to any property u.oguired by way of gift or under '.1 will or any other instrument or under a decree or order of a civil court or under an award where the gift, will or other the terms of instrument or the decree, order or award prescribe a restricted estate in such property." Section l 5 provides: "15 (I) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- - (a) firstly, upon the sons and dau ghters (including the children of any predeceased son or d•m· ghter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother ~ml father;· 1962 ·'· S Af11m1al4l v. S. ). l111ji..uninr 432 SUPREME COURT REPORTS [1962] SUPP. (d) fourthly, upon the heirs of the father; (e) lastly, upon mother; the heirs of the (2) Xotwithstanding anything contained sub.section (I),--, (a) any property inherited by a female Hindu from her father or mother shall devolv<', in the absence of any son or daughter of the deceased (including the children of any predeceased son or <laughter) not upon the other heirs referred to in sub-section (I) in the order specified therein but. upon the heirs c1f the father; (b) any property inherited by a female Hindu from her husband or from her father-in-litw shall devolve, in the absence of any son or ditughter of the clcceasc<l (including the children of any predeceased son or <laughter) not upon the other heirs referred to in su b.scction (I) in the order specified therein, but upon the heirs of the husba.nd." s.,ction 16 which prescribes the' order of succession :ind manner of distribution among the heirs of a Hindu female providPs by Jtule : "Among the heirs specified in sub·Hection (I) of section I:), those in one entry shall be preferred to tho-;e in any succeeding entry, and those include< 1 in tho s:ime entry sh:ill ia.ke simultaneouo I~." S.S. Munna Lal '. S. s. Rajkumar EhahJ. 3 S.C.R. SUPREME COURT REPORTS · · 433 Counsel for Rajkumar concedes, and in our judg ment he is right in so conceding, that if the share declared by the preliminary decree in favour of Khilonabai. is property possessed by her at the date of her death, it should devolve upon her grandsons Munnalal and Ramchand, to the exclusion of Raj. kumar adopted son of Padam Chand. This Court in Gumalapara Taggina Matada Kotturuswami v. Setra Veeravva (1) held that "The word "possessed" ins. 14 is used in a broad sense the state of owning or and in the context means having in one's power". The preliminary decree decla, red that Khilonabai was entitled to a share in the family est:ite and the estate being with the family of which she was a member and in joint enjoyment, would be possessed by her. But coun sel for, Rajkumar submitted that under the prelimin ary decree passed in the suit for partition the interest of Khilonabai in the estate was merely inchoate, for she had a mere right to be maintain ed out o! the estate and that her right continued to retain that charitcter till actual division was made and the share declared by the preliminary decree was separated to her: on her death before actual division the inchoate interest again rever ted to the estate out of which it was carved. Counsel relied upon the judgment of the judicial in Pratpamull Agarwalla v. Dhanabati committee Bibi (2 ) in support of his plea that under tho Mitak shara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the· owner of such share until the di vision of the property is actm Uy made, as she has no pre-existing right in the estate except a right of maintenance. Counsel submitted that this rule of Hindu law was not affected by anything · contained in.s. 14 of the Hindu Succession Act. By s. 14 (1) the Legislature sought to convert the interest of a Hindu female which under the (I) (2) [1959] l Supp. S.C.R. 968. (l9aS) L.R. Ga I.A. 33. I96t :::i. s. A-11''1.na Loi v. S S. Rojkumar 484 SUPREME COURT REPORTS (1962) SUPP. Sastric Hindu law would have been regarded a.a a limited interest into an :i.bsolute interest and by t.heretrJ gave to the expression the explanation "prop<\rty" th<• widest COlllh>tation .. Tho expres includes property acq11ired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenanee or arrears of maintenance, or by gift from :my perso11, whether a relative or not, before at or aft.er her marriage, or hy her own skill or exert.ion, or hy purclmse or by prescription, or in any other man11er what.·so-evcr. Ry s, 14(1) manifostlv it. is intended to convert the interest which a ·Hindu fomal" h:tH in property however restricted the mtt.ure of that interest under the Sastrio Hinrlu law may be into absolute estate. Prata p m11ll'.• case undoubtedly laid down that till actu:tl division of the share decln.red in her favour by a prelimin11,ry decreP for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgm1'nt apply aftpr the enn~t.ment of the Hindu Succussion Act. The Aet is a codifying nnactmcnt, and has made far reachiu\( ch<mgcs in t.hrJ structure of the Hin"lu law of i11h••i'ita11ce, and succession. The Act confers upon Hindu femaJes full rights of inheritance, and sweeps away the traditiona.l limi ta.tions on Ler powers of dispositions which were rowu·ded under . the Hindu law as inherent in her estat11. She is under the Act. regarded as a fresh stock of rlescent in respect of prop<>rty possessed It is true that hy her at th,, time of hor den•:h. unde!" the ::i<i~t-ric Hindu law. the share given to ;t Hindu widow on partition between her sons or her grands.ms w:i..q in lir.·u of her right to maint.e nancn. Shu w<ts not "ntitlecl to claim partition. But the Logislature by enacting t.h" Hindu Womens' Right to Property Aot, 1937 made a eignificant 1fopart11re in t.hat branch of the law: the Act gave a Hindu widow th., sam1J intoreat in tho property 1962 S. S. Munna Lal v. S. S. Rajkumar Shah .I 435 3 S.C.R: SUPREME COURT ·REPORTS . ' which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this develop· ment that in enacting s. 14 of the Hindu Succes sion Act, the Legislature merely intended tu declare the rule enunciated by the Privy Council in Pratap· .mull' s case. Section 4 of the Act gives an over riding effect to the provisions of the Act. It enacts: "Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act : x x x (b) x x" Manifestly, the legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which s. 14 occurs or in the phraseology used by the Ll'gis lature to warrant the view that such a right decla· red in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of s. H. In the light ('f the scheme of the Act and its avowed purpose it would be difficulr, without doing violence to the language used in the enactment, to assume that a right declan·d in pro perty in favour of a person under a clecree for partition is not a right to property. If under a preliminary decree the rigbt in favour of a Hindu male be roi"arded as property the right declared in favo11r of a :&indu female must also be re~ardeq 1962 8, S. Jfunno 1..~l v. 8. 8. Rajk.,.., Slid. J, 436 SUPREME COURT REPORTS [1002] SUPP· as property. The High Court was therefore, in our judgment, in error in holding that the right dccla· rc<l in favour of Khilonahai was not possessed by her, nor are we able to agree with the submission of the learned ·counsel for Raj Kumar th·1t it was not property within the meaning of s. 14 of the Act. On that view of the case, by virtue of ss. 15 and l6 of the Act, the interest deolared in favour of Khilonabai devolved upon her sons Munnalal and Ra.mchand to the exclusion of her grandson Rajkumar. The decree passed hy the High Cuurt is therefore modifie<l in this respect and the decree passed by the trial Court restored. Having regard to the p11rtial success of the parties, there will be no order as to costs in this appeal and in the High Court. Appeal partl,y allowed. • IY~2 Fth1uary 21. R. C. JALL v. UNION OF INDIA (B. P. SI:SIIA, c. J., K. SUBBA RAO, N. RAJAGO· PALA AYYA~GAH, J. R. '.\TuDHOLKAR and T. L. VENKATARAMA AIYAR, JJ.) Railu•a.y -- ,'\1litfo1 recorer.rJ of CP&.r1-limitation-Jlaint .. n.inrzbilit11 -- Co11signee Limitation Act, ~f !iable--l1ulirtn mos (LY of 1908), Art.;, 149, no;;o -- Con•litution of l11dia, Arts 265, .)72 - Ordinance Yo. 39 or 1944 -- Ordinance 6 of 1947, .•.. 1-•;oal Production Fund Ritl,., /!144, rr.6, .1, 3(a), 3(b) -Supreme Court Rule.•, 19W, as amended, 0. XI' lll, r.2.