LexNAGENDRA PRASAD versus KEMPANANJAMMA
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124, NAGENDRA PRASAD v. KEMPANANJAMMA August 7, 1967 [R. S. BACHAWAT, J. M. SHELAT AND V. BHARGAVA, JJ.] • Th.e Hindu Law Women's Rights Act, 1963 (MysOTe Act 10 of 1933), s. 8-Rights of female relations when property passes to sole .mrviving male heir-Grandmother of sole s1'r!living male Jieir whe- ther entitled to share under s. 8(1) (d)-C!. (d) whethet assumes notional partition between penubtimate coparcener and sole male survivor. Clause (a) of sub-s. (1) of s. 8 of the Hindu Law Women's Rights C Act 1933, provided that at a partition of joint family property bet- ween a person and his son or sons, those entitled to share with them would be his mother his unmarried daughters, and the widows and unmarried daughters of his predeceased undivided sons and brothers who had no male issue. Clause (b) provided that when the partition was between brothers, those entitled to share with them would be their mother, their unmarried sisters, and the widows and unmarried D daughters of their predeceased undivided brothers who had left no male dissue. According to cl. (c) clauses· (a) and (b) would apply, mutatis mutandis, to a partition among other coparceners in a joint family. Clause (d) laid down that when a joint ;family property passed to a single coparcener by surviVorship it would so pass sub- ject to the right to share of the classes of females enumerated in the earlier clauses. Sub-s.(2) of s. 8 fixed the shares of the aforesaid re- latives. Sub-s.(3), inter alia, defined the term 'mother' as including E where there were both a mother and a step-mother, all of them joint- ly, and the term 'son' as including a step-son. a grandson and a great grandson. It also provided that the provis:ons of the section relating to the mother would be applicable, mutatis mutandis, to the pater- nal grandmother and great grandmother. M died in 1951. The plaintiff respondent was one of his widows and the appellant was his sole surviving grandson. In a suit for her F share filed by the respondent the question was whether in the terms of cl. (d) of sub-s. (I) of s. 8 of the aforesaid Act, the responden~ was entitled to a share. The trial court decreed the suit and the High Court upheld the·decree. The appellant came to this Court by certifi· cate. It was contended on behalf of the appellant that cl. (d) pre-sup- posed a partition between the penultimate and the sole-surviving co- parceners and that therefore all the femalies in cl. (a), (b) and (c) could not be said to be entitled to a share. G Held: Per Bachawat and Bhargava, JJ.-When determ.'.ning the scope of the right under cl. (d) 'there is no need to envisage an assum- ed partition and there is no justification for holding that cl. (d) must be interpreted on the basi$ of an assumed partition between the sole surv(.ving member of the family and the coparcener who immediately pre-deceased and as a result of whose death the pr11perty passed to the sole survivor. [127]. H The objeot of cl. ( d) is to "ive to aU females entitled to main- tenance from the coparcenary property a right to claim a share in the joint family property instead of a right to maintenance and that is why reference is made ·in it to all the females enumerated, in els. (a), NAGENDRA ti, KEMPANANJU!MA (Bhargava, J.) 1~5 A (b) and (c), Clauses (a) and (b) re.fer to four classes of females viz. the mother, the widow, the unmarried daughter and the unmarried sister. All these four classes of females are within cl. (d), [129B-Cl. Sub-s. (3) af s. 8 lays down that the provis:ons of the whole sec- tion relating to the mQther are to apply mu.tatis mu.tandis to the pater- nal grandmother and great grandmoUher. Consequently when the classes of females entitled to shares under cl. (d) are to be ascertained B and it is to be found out whether a mother mentioned in cl. (a) of (b). is entitled to share, the persons included in the exp"ession 'mother' would be a 'step-mother' and further, the provision conferring the right on the mother would also confer the right on paternal 'grand- mother and great grandmother, because cls.(a) and (b), which relate to a mother are to be applicable mu.tatis mu.tandis to paternal grand- mother and great grandmother also. On this interpretation of cl. (d) C read with els. (a), (b) and (c) and sub-s. (3) of s.8., the respondent must be held entitled to a share, As the widow of M a coparcener, she was entitled to a one-fourth share. fl24D-Gl
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