Delhi High Court
Lachhman Dass vs Uoi & Ors on 4 May, 2010
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved On : 30.04.2010
Pronounced on : 04.05.2010
+ WP (C) No. 2613/1981 &
WP(C) No. 1429/1994
LACHHMAN DASS ........ Petitioner
Through : Mr. L.D. Adlakha, Advocate
versus
UOI & Ors. ..... Respondent
Through: Mr. Dalip Mehra, Advocate
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
*
1. In these two writ proceedings, the petitioner questions to the decision of the Central
Government, which in effect rejected his claim for allotment of 6 standard acres and 7-15/16
units, under the Displaced Persons (Compensation and Rehabilitation) Act, 1964 and Rules
framed under it (hereafter called the Act and the Rules, respectively).
2. Briefly the facts pertaining to WP(C) No.2613/1981 are that the petitioner claimed
ownership of lands in erstwhile Punjab (present day in Pakistan) and had to flee during the
partition when he came and settled in India. The scheme of the Act and Rules prescribed that
such individuals, i.e. "displaced persons" were to lodge claims that were to be verified having
WP (C) Nos. 2613/1981 & 1429/1994 Page 1
regard to the records available. The petitioner was allotted agricultural land in Tehsil
Ballabhgarh (present day in Haryana), in lieu of the land owned by him in the North West
Frontier Province (NWFP). It is contended that the petitioner's claim was not fully satisfied and
continued to be pending till 28.12.1977 when a letter was issued acknowledging that as against
his entitlement to 32 standard acres and 11/16 units (after the permissible deductions under the
Act and Rules), he was holding 25 standard acres and 8-3/4 units. He was therefore held
entitled to allotment of net balance, i.e. 6 standard acres and 7-15/16 units. The petitioner refers
to his two representations having been made for allotment of such 6 standard acres odd of land
and has annexed copies of such letters dated 28.12.1977 and 06.04.1979.
3. Such being the position, on 11.09.1979 the Rehabilitation Department of Haryana by a
communication dated 11.05.1979 took the possession saying that under the existing policy no
allotment could be made to a non-Punjabi claimant. This stand is reflected in the following in
the following letter:
"No. 372/R/1 dated 11/5/1979
To
Shri Lachman Dass
Son of late Shri Thana Ram,
House No. 2, H.B./80/_Township New/_
Faridabad, District Gurgaon.
The application which you have given for allotment of agricultural land having an
area of 6 standard acre and 7 15/16 units, has been filled on 30-4-1979 on the ground
that under the Government Policy, no allotment can be made to a non-Punjabi claimant.
Sd/-
Assistant Registrar (H),
Chandigarh."
4. The petitioner protested this stand contending the policy was opposed to the scheme of
the Act, which did not discriminate between various classes of displaced persons on the basis of
their different land holdings in Pakistan. It was also contended that the petitioner held lands in
both pre-Partition Punjab Province, as well as NWFP. On the basis of these allegations, the
petitioner approached this Court seeking a direction that his claim for 6 standard acres and 7-
15/16 units should be satisfied in accordance with the letter dated 28.12.1977.
WP (C) Nos. 2613/1981 & 1429/1994 Page 2
5. The Petitioner relies on the order, dated 24.10.1966, of the Authorized Chief Settlement
Commissioner confirming that he, and Shrimati Mukandi Bai were entitled to ½ share each in
the agricultural land claim, which was subsequently accepted by the Settlement Commissioner
by his orders dated 31.5.1970. The said Mukandi Bai was the wife of Chaman Lal, whose
grandfather, and that of the petitioner's father were common. The genealogical tree, relevant for
the present purpose, as set out in the petitions, and various orders, is as follows:
Sahib Ram. Dasu Ram
Thana Ram Hem Raj
Lachman Dass Mukandi Bai (widow of Chaman Lal)
It is stated that the above facts did not mean that the petitioner and Smt Mukandi Bai held joint
claims. The order of the Authorized Chief Settlement Commissioner, had bifurcated the claims
of the petitioner and Shrimati Mukandi Bai in equal shares, to be assessed separately and not on
pro-rata basis.
6. The Petitioner contends that land to the extent of 46 acres 10-1/6 units was allotted to
both claimants, (i.e. himself and Mukandi Bai) in Punjab after Panchayat Tasdik, as by that time
Revenue Record was not received from Pakistan. This allotment was made against the accepted
claim of 66 acres 10 ¼ units after applying the "Punjab cut". It is averred that after receipt of the
record, total claim was assessed to the extent of 86 std. acres and ¾ units, in which the
Petitioner's share being half was calculated as 43 std. acres and 3/8 units was added to his rights
in Punjab land to the extent of 6 Standard Acre 1 unit, thus the aggregate of his share was
calculated at 49 standard acres 1 - 3/8 units. After applying the Punjab cut the area to the
Petitioner's share worked out to 32 standard acres 11/16 units. This, he submits, was rightly
assessed according to rules. He was given the benefit of Rule 19, as his claim was assessed as an
independent unit. It is submitted therefore, that after taking into consideration the allotment of
land (to the Petitioner) to the extent of 25 std. acres 8 ¾ units, an area of 6 std. acres 7-15/15
units still remained un-allotted, which was confirmed by the Assistant Settlement Order, by his
letter dated 28/29.12.1977.
WP (C) Nos. 2613/1981 & 1429/1994 Page 3
7. The respondents, after entering appearance, resisted the petition, filed in 1981, and sought
vacation of an interim order, which had directed maintenance of status quo, in respect of un-
allotted lands, contending that a limited area of land had been made available to the State of
Haryana, after Punjab reorganization. It was contended by the Union, that the claim of the
petitioner and that of Mukandi Bai were to be assessed jointly, and not divided in equal shares as
per Rule 19(2)(a). That rule prescribes that where that two or three members are entitled to claim
partition, the compensation payable to such family shall be computed by dividing the verified
claim into two equal shares and calculating the compensation separately on his share. The
respondents relied on an order of 4.6.1973 to say that the petitioner's claim for six standard acres
odd, is impermissible.
8. The Court, by its order dated 28th April 1989, varied the interim order, made on an
earlier stage of the proceedings, and directed the respondents to keep the extent of the
petitioner's claim (6 standard odd acres) unalotted, and subject to final judgment of this Court.
9. The respondents, as mentioned earlier, relied on an order of the Settlement
Commissioner, dated 04-06-1973. The same reads as follows:
"Present : Shri Pran Nath Talwar, on behalf of Shrimati Mukandi Bai. His arguments
have been heard.
2. The only point which is under consideration is spilt into two units as provided in
Rule 19, or, the cut will be applied on the entire claim because Shrimati Mukandi Bai is
pre-1937 widow having no right to claim partition.
3. Shri Talwar has taken me through the order of Shri Rajni Kant, dated 24.10.66,
according to which he allowed the name of Shrimati Mukandi Bai also to be included in
the Claim Order and acknowledged that the claim had been filed jointly. I have also seen
orders of Auth. C.S.C. and Joint Secretary who have up-held that this was a Joint Hindu
Family claim. Shri Lachman Dass, in his own compensation application, has also stated
that claims were filed on behalf of the Joint Hindu Family vide page 3 of the C.A.F.
(Column 3).
4. The short question which arises is whether Shrimati Mukandi Bai may be treated
as one of the members entitled to claim partition in terms of Rule 19(2) (a). Shri Talwar
flt that since Shrimati Mukandi Bai is descending in a different branch right from Shri
Daulat Ram, their fore-father, these two different branches may be maintained while
computing units under Rule 19. He has drawn my attention to the Memo of appeal which
shows the family-tree as under:-
WP (C) Nos. 2613/1981 & 1429/1994 Page 4
Daulat Ram
Sahib Ram. Dasu Ram
Thana Ram Hem Raj
Lachman Dass Mukandi Bai (widow)
(Respondent No.3) appellant
5. On my further enquiry, I am told that Shri Chaman Lal, husband of Shrimati
Mukandi Bai, Died in 1924, and Shri Hem Raj, father of Shri Chaman Lal, died earlier in
1909. As it is, Shrimati Mukandi Bai is a pre-1937 widow and remained joint with Shri
Lachman Dass, the survivor of the second branch of the tree.
6. In this view of the matter, I am afraid according to the position of the family as it
emerges out on the 14th day of August, 1947, there is only one unit as Shrimati Mukandi
Bai cannot be treated as a second unit due to her being a pre-1937 widow not entitled to
claim partition. The case will, therefore, be processed by applying the key on the entire
claim and then dividing the compensation in two equal shares.
The applicant present has been informed.
Dated 4.6.1973
Sd/-
(N.B. GORWANEY)
Authorised Settlement Commissioner
4.6.73"
10. The petitioner was aggrieved by the above order, which, according to him, was disclosed
to him during the pendency of his writ petition. He therefore, sought an order, from the
revisional authority, to quash it. By order dated 17th October, 1990, the Assistant Settlement
Commissioner, acting in furtherance of his powers under Section 24 of the Act, rejected the
claim for quashing of the 1973 order, holding as follows:
"2. The relief claimed by the petitioner is to call for the record of compensation file,
quash the impugned order of authorized Settlement Commissioner dated 4.6.1973 and
order of Assistant Settlement Officer (P) as communicated vide letter dated 22.8.1988
being illegal void unjust and without jurisdiction and restore the balance compensation
due to petitioner to the incident of 6 standard Acres 7-15/16 units and also allow benefit
of rule 19 or20 of D.P. (C&R) Rules 1955.
WP (C) Nos. 2613/1981 & 1429/1994 Page 5
3. I have gone through the records of this case and also the arguments of Shri H.K.
Dhawan, Counsel for the petitioner. Perusal of the records of this case and also the order
dated 4.6.73 shows that the petitioner namely Shri Laxman Das was given full
opportunity to present his case before the authorized Settlement Commissioner, New
Delhi. On behalf of the petitioner Shri P.N. Twalar, Advocate appeared and argued the
case. After considering his arguments and records of this case the Authorised Settlement
Commissioner, New Delhi passed order dated 4.6.73. The petitioner was also present at
the time of the hearing of the case and as such it was the duty of the petitioner to call
copy of the order and if he was not satisfied with the said order he should have sought
legal remedy as provided under the law.
4. The points now raised by the petitioner in his revision petition were already
considered by the Authorised Settlement Commissioner at the time of passing his order
dated 4.6.1973. As regard the letter dated 22.8.88 this letter is nothing but a routine
communication intimating the petitioner the detail of the finalization of the Compensation
Application and the letter did not convey any order to the petitioner.
5. Perusal of the records also shows that a Writ Petition had been filed by the
petitioner bearing No. 2613 of 1981 against the Union of India as well as the Haryana
State as have been seen from letter No. 11533/Legal/Writs Chandigarh dated 8.2.82, the
out come of which is not known. The petitioner has concealed fate of his Writ Petition
filed in the High Court as to whether the same has been decided or not. He has not even
enclosed the copy of the order if the same has been decided.
6. From the facts mentioned above it is clear that the claimant has sought legal
remedy by filing Writ Petition the revision Petition cannot lie. I, therefore, reject the
revision petition filed by the petitioner and uphold orders dated 4.6.73 of the Authorised
Settlement Commissioner, New Delhi.
Party be informed, May have a copy of this order under usual terms.
(RATTAN LAL)
UNDER SECRETARY TO THE GOVT. OF INDIA
Authorised Chief Settlement Commissioner."
11. The petitioner questioned the above order, under Section 33 of the Act, contending that
the approach of the Authorized Chief Settlement Commissioner was opposed to law, as he
overlooked that the 1973 order violated principles of natural justice, as well as the previous two
orders of 1966 and 1970, which had crystallized his entitlement to a separate and independent
share, than that of Mukandi Bai. It was contended that Mukandi Bai had agitated for her share of
WP (C) Nos. 2613/1981 & 1429/1994 Page 6
claim, when the Authorized Chief Settlement Commissioner, by his order dated 24.10.66
allowed her request, leading to her filing a compensation application. The petitioner's claim too,
was similarly remanded for consideration, in 1970; he relies on that order.
12. The Central Government, which was constituted as the second revisional authority under
Section 33, by its order of 31st May, 1991, rejected the petitioner's request for setting aside the
Chief Commissioner's order dated 17th October, 1990. This latter order of 31st May 1991, has
been impugned in W.P. (C) No.1429/1994.
13. The petitioner contends that the approach of the respondents, in denying his claim for
balance 6 standard acres odd, is unsustainable. He submits that having separately assessed his
claim, and determined, after satisfying themselves about the entitlement to 32 standard acres
plus, after applying the Punjab cut, under the Act, that he was entitled to such land, the
authorities could not have resiled from that position. It is argued that originally, the entire claim
could not be verified because the full records were unavailable. After they were received, the
respondents discovered that the petitioner's claim was distinct from that of Mukandi Bai; though
their claims were assessed together, they were assigned individual and separate shares, after
giving the benefit of Rule 19. Mukandi Bai's appeal for compensation led to a remand. However,
the assessment by the respondents, of that claim did not mean that they could re-open the
question of what the petitioner was entitled to. It was also argued that the 1973 order should not
be taken into consideration, as it was made in violation of principles of natural justice, and even
the respondents understood the position to be so, as was evident from the endorsement they
issued to the petitioner in 1977.
14. The respondents submit that the order of the Assistant Settlement Commissioner dated
04.06.1973, is justified in law. They seriously contest the petitioner's argument regarding
violation of principles of natural justice and submit that he and his counsel were heard before the
order was made. On the merits, it is submitted that while the fact regarding availability of all the
records is correct, no finality could be attributed to the assessment about the petitioner's
entitlement, i.e. whether he was entitled to be separately assessed or the claim of Mukundi Bai
had to be clubbed with his. It is argued in this context that in order to determine such aspects the
relevant provision is 19 (2)(a) and sub-rule (3). It is submitted that the determination of the
WP (C) Nos. 2613/1981 & 1429/1994 Page 7
Settlement Commissioner of June 1973 about Mukandi Bai's dis-entitlement to claim partition is
in accord with Rule 19 (3), particularly the explanation.
15. It is evident from the above discussion that the plaintiff had claimed for allotment of
lands, as a displaced person, in terms of the Act and Rules framed under it. The Act was brought
into force, as part of a legislative package, preceded by provisions enabling the authorities to
acquire, after notification, properties left behind by evacuees who had migrated to present day
Pakistan. The 1954 enactment gives effect to Parliamentary intention to enable payment of
compensation to displaced persons, in respect of the property left by them in the
territories forming part of Pakistan.
16. Section 12 of the Act empowered the Central Government to acquire property, which had
been declared evacuee property and vested in the Custodian.
After acquisition the title of the evacuee stood extinguished
and the evacuee property vested absolutely in the Central
Government free from all encumbrances. All such property
acquired under Section 12 formed part of a "compensation
pool". Cash balances lying with the Custodian and other contributions and assets were
also made part of this compensation pool; the Central Government framed Rules for paying
compensation to these displaced persons from out of the pool. Payment of compensation was
also through transfer of property.
17. The respondents do not dispute here about the petitioner's entitlement to allotment, by
way of compensation; indeed the record indicates that such allotment was to the extent of more
than 25 standard acres. The dispute centres around whether, in the circumstances, and having
regard to the text of Rule 19, the clubbing of Mukandi Bai's compensation claim, with that of the
petitioner was justified. The respondents argue that it was justified, since Mukandi Bai and the
Petitioner belonged to the same family.
18. The order of the Chief Settlement Commissioner, dated 24th October,1966 reads as
follows:
"Perusal of the original order passed by the Claim Officer shows that the claim was
verified in favour of Shri Lachhman Das and Smt. Mukandi Bai but at the time of
WP (C) Nos. 2613/1981 & 1429/1994 Page 8
revision in accordance with the Revenue record received from Pakistan, the order was
passed in favour of Shri Lachhman Das only through the Revenue Record showed the
name of Shri Lachhman Das and Shrimati Mukundi Bai, it was instantaneous mistake by
the officers who revised cases in suo-moto revision.
In view of their reasons stated above the representation is accepted and the order dated
14.11.58 passed by the Addl. Settlement Commissioner Shri V.P. Kapur, order dated
12.10.62 and 14.10.63 passed by Shri K.L. Wason, Addl. Settlement Commissioner
should be treated as having been passed in favour of Shri Lachhmandas and Smt.
Mukandi Bai in equal shares."
19. Apparently, Mukandi Bai had preferred a revision, against some determination made in
her case; that was disposed of by the order of 11.06.1970, in the following terms:
"Under Rule 19 of D.P. (C&R) Rules, 1955 the status of family is to be determined as on
26.9.1955. However, this is a point on which the Processing Officer should call upon the
parties to produce evidence and satisfy himself whether the benefit of Rule 19 could be
given".
20. The processing officer had called the parties, and heard them. It was under these
circumstances, that the order dated 04.06.1973 was made. The order is premised on an
interpretation of Rule 19, and the finding that Mukandi Bai was a pre-1937 widow (her husband
having passed away sometime in 1924) and therefore, not entitled to claim partition.
Consequently, her claim was clubbed with that of the petitioner.
21. At this stage, it would be necessary to refer to Rule 19; it reads as follows:
"19. Special Provision for payment of compensation to Joint families - (1) Where a claim
relates to properties left by the members of an undivided Hindu family in West Pakistan
(hereinafter) referred to as the joint family) compensation shall be computed in the
manner hereinafter provided in this rule.
(2) Where on the 26t Sept. 1995 hereinafter referred to as the relevant date) the joint
family consisted of :-
(a) two or three members entitled to claim partition, the compensation payable to
such family shall be computed by dividing the verified claim into two equal shares
and calculating the compensation separately on each such share.
(b) four or more members entitled to claim partition, the compensation payable to
such family shall be computed by dividing the verified claim into three equal
share and calculating the compensation separately on each such share.
WP (C) Nos. 2613/1981 & 1429/1994 Page 9
(3) For the purpose of calculating the number of the member of a joint family under
sub-rule (2) a person who on the relevant date :-
(a) was less than 18 years of age,
(b) was a lenial descendant in the main line of another living member of joint Hindu
family entitled to claim partition shall be excluded.
Provided that where a member of a joint family has died during the period commencing
on the 14th August, 1947 and ending on the relevant date leaving behind on the relevant
date all or any of the following heirs namely :-
(a) A widow or widows
(b) a son or sons (whatever the age of such son or sons but no lenial ascendant in the
main line,
then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as
one member of the joint Hindu family.
Explanation - For the purpose of this rule, the question whether a family is joint or
separate shall be determined with reference to the status of the family n the 14th day of
August, 1947 and every members of a joint family shall be deemed to be joint
notwithstanding the fact that he had separated from the family after that date."
22. The petitioner contends that the extracts of Revenue Record received from Pakistan show
that these are in the name of his father, Thana Ram, pertaining to village Khasora Pacca.
Similarly "Parchi Chhant", i.e. extract of Revenue Records of village Mali Khail Kacha and Mali
Khail Pacca, says the petitioner, and shows entries in favour of Thana Ram. It is submitted, that
there are other extracts as well which are in the name of Mukandi Bai along with Thana Ram,
which imply that both of them were co-owners of the agricultural land in Pakistan. It is an
undisputed fact that Thana Ram died in Pakistan; the petitioner filed his claim application on
29.9.1950 in his own name and in the name of Shrimati Mukandi Bai.
23. The basic reason which persuaded the Chief Settlement Commissioner to hold, as he did
that the petitioner and Mukandi Bai were to be assessed jointly, is found in the following extract
of his order, of 1973:
"Shri Chaman Lal, husband of Shrimati Mukandi Bai, Died in 1924, and Shri Hem Raj,
father of Shri Chaman Lal, died earlier in 1909. As it is, Shrimati Mukandi Bai is a pre-
1937 widow and remained joint with Shri Lachman Dass, the survivor of the second
branch of the tree.
WP (C) Nos. 2613/1981 & 1429/1994 Page 10
6. In this view of the matter, I am afraid according to the position of the family as it
emerges out on the 14th day of August, 1947, there is only one unit as Shrimati Mukandi
Bai cannot be treated as a second unit due to her being a pre-1937 widow not entitled to
claim partition..."
24. The relevant provisions of the Hindu Woman's Right to Property Act, 1937, Sections 3
(2) and (3) are as follows:
" (2) When a Hindu governed by any school of Hindu Law other than the Dayabhag
school or by customary law dies intestate 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 the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be
the limited interest known as a Hindu woman's estate, provided however that she shall
have the same right of claiming partition as a male owner."
25. There appears to have been a conflict of judicial opinion as to whether a Hindu widow's
right to claim partition had to be reckoned from the date of her husband's death, or from the date
she sought to enforce her claim. This was resolved by the Supreme Court, in Potti Lakshmi
Perumallu v. Potti Krishnavenamina, [1965] 1 SCR 26 in the following manner:
"...Coming to (he last question there is a certain amount of conflict in the decisions of
the various High Courts. One view is that the quantum of interest to which a Hindu
widow is entitled under Section 3(2) of the Hindu Women's Rights to Property Act, 1937
is to be determined as on the date on which she seeks to enforce partition under Sub-
section (3) of Section 3. The other view is that it has to be determined as on the dale on
which her husband died, that is to say, that it is not a fluctuating interest increasing or
decreasing as u result of deaths or births in the family.
The first mentioned view has been stated with approval in Mulla's Principles of Hindu
Law, (12th ed.) and it is stated at pp. 109-110:
The share which devolves on a widow of a deceased coparcener is not a fixed and
determinate share but what she takes is the 'same interest as he himself had'. Therefore,
until there is partition, she cannot predicate the particular fraction of her share for it is
likely to increase or decrease by birth or death of other coparceners. Her share would
include a share in accretions to the joint family property till partition is effected. Prior to
the Act, a widow was entitled to a share in partition among her sons in her capacity as a
mother (except in Madras). It has been held in a number of cases that after the Act the
widow cannot claim a double share on partition between the sons, one in her capacity as
a widow and another as a mother. Under the prior law, stridhan acquired by a female
from her husband or father-in-law was taken into account when a share was allotted to
heron partition amongst the sons. The share she gets under Section 3(2) is not affected by
WP (C) Nos. 2613/1981 & 1429/1994 Page 11
any rule of Hindu law to the contrary and it has been held in a Nagpur case that such
stridhan received by her would not be deducted from her share on partition.
In support of this statement in law reliance has been placed upon the following decisions:
Nagappa v. Mukamhe ILR 1951 Bom 442 : 1951 Bom. 309 : 53 Bom. L.R. 177 Muhado v
Gujarubai AIR1954Bom442 Sluvappa v. Yellawa : AIR1954Bom47 Gangadhar v.
Subhashini : AIR1955Ori135 Tukaram v. Mt. Gangi AIR 1957 Nag. 28 Ramchandra v.
Ramgopal AIR 1956 Nag 228 Hanuman v. Tulsabai AIR 1956 Nag 63.
In addition to these decisions our attention was also invited on Gurudayal v. Sarju AIR
1952 Nag 434 Kamal Kishore v. Harihar ILR 30: AIR 1951 Pat 645 Sabujpari
Satrughan Isser AIR 1958 Pat 40 M. Subba Rao v. Krishna Prasadam AIR 1954 Mad
227 Parappa v. Nagamma AIR1954Mad576 Manicka v. Arunachala
MANU/TN/0276/1962 : AIR1962Mad103 Keluji v. Jagabandhu AIR1958Ori47 Indian
Leaf Tobacco Development Co. Ltd. v. K. Kotayya AIR1955AP135 Laxman v. Gangabai
ILR (1955) M.B. 282 : AIR 1955 M.B. 138 Bhondu v. Ramdayal AIR1960MP51 Ratan
Kumari v. Sunder Lal : AIR1959Cal787 .
The High Court itself referred to the decision in AIR1954 Mad576 which is a decision of
the Full Bench constituted for resolving an apparent conflict between the decisions in
Chinniah Chettiar v. Sivagami Achi AIR1945 Mad 21 and Subha Naicker v. Nallammal
AIR1950Mad192 . In the opinion of the Full Bench there was really no conflict between
the two decisions and that the right conferred by the Hindu Women's Rights to Property
Act was a new right in modification of the pre-existing one. The Full Bench further held
that Section 3(2) of the Act does not bring about a severance of interest of the deceased
coparcener, that his widow is not raised to the status of a coparcener though she
continues to be a member of the joint Hindu family as she was before the Act, that the
joint family would continue to exist as before subject only to her statutory rights and that
the rights of the other members of the family would be worked out on the basis that the
husband died on the date when the widow passed away, the right to survivorship being
suspended till then. Further according to the Full Bench a widow can under the Act claim
a share not only in the property owned and possessed by the family at the time of his
death but also in the accretions arising therefrom, irrespective of the character of the
accretions. The various decisions to which we have adverted rest on the view that the
interest which the law has conferred upon the widow is a new kind of interest though in
character it is what is commonly known as the Hindu widow's estate. This interest is in
substitution of her right under the pre-existing Hindu law to claim maintenance. The
decisions also recognise that though the widow does not, by virtue of the interest given to
her by the new law become a coparcener she being entitled to claim partition of the joint
family property is in the same position in which her deceased husband would have been
in the matter of exercise of that right. That is to say, according to those decisions her
interest is a fluctuating one and is liable to increase or decrease according as there are
deaths in or additions to the members of the family or according as there are accretions
to or diminutions of the property. In our opinion these decisions lay down the law
correctly. To hold, as contended for by Mr. Desai and as would appear from the two
decisions upon which reliance was placed by him before us - Jadaubai v. Puranmul
WP (C) Nos. 2613/1981 & 1429/1994 Page 12
MANU/NA/0016/1943 and Siveshwar Prasad v. Har Narain AIR1945Pat116 would
mean that whenever a coparcener in a Hindu joint family dies leaving a widow a
disruption takes place in the family. For, unless a disruption is deemed to take place, it
would not be possible for the widow's share to be crystallised. The argument of Mr.
Desai, however, is that the words in the Act "his widow shall, subject to the provisions of
Sub-section (3) have in the property the same interest as he himself had can only mean
the interest which the deceased coparcener had at the moment of his death and the words
"shall be the limited interest known as a Hindu woman's estate" show that the nature of
her interest was to be the same as already recognised by the Hindu law. The legislature
did not, he says, intend to create a new kind of interest not to make her a coparcener.
Undoubtedly she does not become a coparcener, though her interest in the family
property is to be the same as that of her deceased husband except that in extent it is to be
that of a Hindu widow. (Now, of course, it has been enlarged by Section 14 of the Hindu
Succession Act, 1956). But a coparcener has no defined interest in the joint family
property and the right in the joint family property and the right which he has is to claim
for partition. The quantum of his interest would be determinable with reference to the
date on which such member unequivocally declares his intention to separate and thus put
an end to the coparcenary. It cannot even be suggested that the event of the death of a
coparcener is not tantamount to an unequivocal declaration by him to separate from the
family. According to the theory underlying the Hindu law the widow of a deceased Hindu
is his surviving half and therefore as long as she is alive he must be deemed to continue
to exist in her person. This surviving half had under the Hindu law texts no right to claim
a partition of the property of the family to which her husband belonged. But the Act of
1937 has conferred that right upon her. When the Act says that she will have the same
right as her husband had it clearly means that she would be entitled to be allotted the
same share as her husband would have been entitled to had he lived on the date on which
she claimed partition."
26. It is discernable from the above extract that the Supreme Court acknowledged that a
Hindu widow's right to claim partition, even for the limited estate, did not result in her being
deemed to be a coparcener. Her widow's estate stood enlarged, only to the extent that if there
were a partition, she was held entitled to the share her deceased husband would have been
entitled to. In this case, Rule 19 created a fiction, when it came to allotment of properties, or
compensation, to displaced persons. This fiction can be seen from the following extract:
"...Provided that where a member of a joint family has died during the period
commencing on the 14th August, 1947 and ending on the relevant date leaving behind on
the relevant date all or any of the following heirs namely :-
(c) A widow or widows
(d) a son or sons (whatever the age of such son or sons but no lenial ascendant in the
main line,
WP (C) Nos. 2613/1981 & 1429/1994 Page 13
then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as
one member of the joint Hindu family.
Explanation - For the purpose of this rule, the question whether a family is joint or
separate shall be determined with reference to the status of the family on the 14th day of
August, 1947 and every members of a joint family shall be deemed to be joint
notwithstanding the fact that he had separated from the family after that date."
27. The above provision was part of Rule 19 (3), which amplified as to who were to be
considered as members of a joint family. The proviso and explanation clearly state that
notwithstanding the severance in status, of the joint family, for the purpose of determining
shares, certain categories of persons - including Hindu widows- were deemed to be part of a
joint family.
28. In this case, the Court is not deciding a normal partition claim. What is really being
considered is whether the determination of the authorities, in a rehabilitation measure, deeming
that the petitioner's claim had to be considered along with Mukandi Bai, as the latter was to be
treated as a member of the Joint Family, is correct in law. It would be worthwhile to recollect
that the Act was brought in with a view of providing succor and relief to millions of people,
displaced from their homeland, in the immediate aftermath of Partition. Like all such welfare and
humanitarian measures, Parliamentary anxiety was to reach out and provide rehabilitation to all
those with the ultimate objective of settling them into as normal a status as could be assured,
with utmost expedition. Rule 19 no doubt creates a fiction; but then, one must remember, that the
authorities had limited resources, and a limited compensation pool, with which to cater to a large
multitude of people. Having regard to these overall objectives, the exception engrafted by Rule
19 (3), its proviso and explanation cannot be characterized as unreasonable.
29. This Court does not discern any unreasonableness or arbitrariness in the approach of the
authorities, with the issue of the two orders impugned in these petitions. As to the petitioner's
contention that the previous orders of 1966 achieved finality, which could not have been
tampered with, it can be noticed that the revisional authority merely remitted the matter for
determination by the processing officer. The order of 1970 too, said as much. In these
circumstances, the order of 04.06.1973 was made after hearing and considering the views of all
parties. The petitioner's objection to that order, on the ground of its violating principles of
natural justice, to this Court's opinion, is unfounded.
WP (C) Nos. 2613/1981 & 1429/1994 Page 14
29. In view of the above conclusions, the Court is of the opinion that the two writ petitions
have to fail; they are accordingly dismissed, with no order as to costs.
MAY 04, 2010 (S. RAVINDRA BHAT)
JUDGE
WP (C) Nos. 2613/1981 & 1429/1994 Page 15
