JUDGMENT
B.P. Jha, J.
1. The plaintiffs preferred the second appeal before this Court.
2. The plaintiffs claimed 1/4th share in the suit properties on the basis of a registered sale deed dated 31st October, 1964 (Ext. 1) executed by Most. Punia (pro forma defendant) in favour of the plaintiffs. The cause of action arose on 2nd November, 1964, when the defendants refused to partition the suit land. The suit was filed on 1st December, 1964. It is stated in para. No. 7 of the plaint that on the basis of the sale deed executed on 31st October, 1964, these plaintiffs came in possession of the suit land. On these facts, the appellate court held in para. No. 11 of the judgment that the entire assertion of plaintiffs about possession and demand for partition and refusal thereof by the defendants is a cock and bull story. The lower appellate court also held in para. No. 19 of the judgment that the plaintiffs, in fact, purchased, as per Ext. 1 merely a bag of sand and nothing more as Most. Punia had no interest capable of being transferred to them.
3. The case of the plaintiffs, in short, is that they purchased 1/4th share of Most. Punia (pro forma defendant) on the basis of the sale deed dated 31st October, 1964, executed by her in favour of these plaintiffs. The case of the plaintiffs is that one Kanhai Barhi had four sons, namely, Fagu, Dhatu, Baudh and Santokhi. Before 1938, Fagu, Bhatu and Baudh died in a state of jointness. Fagu left behind him his son, Raghunath Barhi. Most. Punia was the widow of Raghunath. It is she who executed the sale deed (Ext. 1) in favour of the plaintiffs in respect of her alleged 1/4th share in the joint family property. After the death of Fagu, Bhatu and Baudh, there was separation in the family in the year 1938. In spite of the separation, they did not divide their properties by metes and bounds. It is also the case of the plaintiffs that Kanhai Barhi left no property. His four sons jointly acquired the lands with their own earned money. Hence, it is for this reason that their names were jointly recorded in the survey records of right, each having 1/4th share in the survey khatian, in respect of the suit lands. It is on the basis of this entry in the survey khatian (Ext. E) that the plaintiffs claimed that Raghunath had 1/4th share in the suit properties. The case of the plaintiffs is that Raghunath died in the year 1940, that is, after the separation in 1938, and, as such Most. Puniya succeeded to the property left by Raghunath.
4. The suit was resisted by the defendants on the ground that the suit lands were joint family properties and that Raghunath died in 1930 or 1932. In other words, the case of the defendants is that Raghunath died in state of jointness before the Hindu Women's Rights to Property Act (Act 18 of 1937) came into force.
5. On a consideration of the materials on record, the trial court decreed the suit, but on appeal, the suit has been dismissed. Hence, this appeal is by the plaintiffs.
6. The Short point for consideration in this case is whether Raghunath died in 1940 as alleged by the plaintiffs or in 1930 or 1932, as alleged by the defendants ? The learned lawyer for the appellants contends that there is no specific finding as to when Raghunath died. In this connection, learned counsel for the appellants, referred to para. No. 16 of the lower appellate court. It is relevant to quote para. No. 16 as also a part of para. No. 17 of the judgment of the lower oppellate court which run as follows:--
"16. Thus from the discussions of the evidence it is apparent that plaintiffs' version that Raghunath died in the year 1940 cannot be accepted rather it is amply proved and established that he died before 1938 no doubt about it. There is also no doubt that defendants' version that he died sometime in the year 1930 or 1932 is highly probable and convincing one.
17. In view of my aforesaid finding that the suit property was joint family property and further that Raghunath died in the year 1930 or 1932 definitely before 1938 it is obvious that Punia had absolutely no interest in the lands she sold to the plaintiffs rather she was simply entitled to maintenance out of the joint family property".
Thus, in para. No. 16, the lower appellate court held that Raghunath died before 1938. It also accepted the defence version that Raghunath died sometime in the year 1930 or 1932. In para. No. 17, the lower appellate court specifically held that Raghunath died in 1930 or 1'932 in a state of jointness. In this connection, in para. No. 17, the lower appellate court explained its earlier finding and held that year 1930 or 1932 was definitely before 1938. Now, from the plaintiff's case in para. No. 3 of the plaint, it is clear that there was separation of the joint family properties, and this separation of the joint family properties took place in or about 1938. If it is so, then the property of Raghunath passed on by survivorship to Santokhi. It is the admitted position that Fagu, Bhatu, and Baudh died before 1938. In my opinion, in view of the averment in the plaint, it is clear that separation took place in 1938. If it is so, then in view of the finding of the lower appellate court in paras. 16 and 17 of its judgment that Raghunath died sometime in the year 1930 or 1932 in state of jointness. Most. Punia cannot claim 1/4th share left by Raghunath. The share of Raghunath passed on to Santokhi by virtue of survivorship on the finding of the lower appellate court itself that Raghunath died in 1930 or 1932, that is, before the Hindu Women's Rights to Property Act. 1937 (Act No. XVIII of 1937) came into force, In this circumstance I hold that Most. Punia had no right to transfer the 1/4th share left by Raghunath as Raghunath died in state of jointness in 1930 or 1932. Most. Punia could not take the place of her husband in respect of the suit property, because in 1930 or 1932 Act No. XVIII of 1937 had not come into force. In other words, the property left by Raghunath passed on to Santokhi by way of survivorship. It is, therefore, clear that Most. Puniya had no interest in the suit property. The sale deed executed by her on 31st October, 1964 will not help the plaintiffs in getting share in the suit properties.
7. It is for this reason that the lower appellate court held in para. No. 19 of its judgment that the plaintiffs, in fact purchased merely a bag of sand and nothing more. I quite agree with the finding of the lower appellate court.
8. Learned counsel for the appellants further contended that if Most. Puniya was in constructive possession of the suit properties, she will be entitled to be absolute owner under Section 14 of the Hindu Succession Act, 1956. In this connection, learned counsel cited a decision of the Supreme Court in Sukh Ram v. Gauri Shankar, (AIR 1968 SC 365). The facts of that case were these :--
Hukam Singh, Sukhram Singh and Chidda Singh constituted a Hindu joint family. They were governed by the Mitakshara Law of the Benares School. Hukam Singh died in 1'952 leaving his wife Kishan Devi.
On December 15, 1956 Kishan Devi executed a sale deed in respect of the joint family property to Gauri Shankar. The only question for decision in that case was as to whether the sale deed executed by Kishan Devi was binding on the coparceners of her husband. On these facts, their Lordships of the Supreme Court held as follows:--
"The interest to which Kishan Devi became entitled on the death of her husband under Section 3 (2) of the Hindu Women's Rights to Property Act, 1937, in the property of the joint family indisputably her 'property' within the meaning of Section 14 of Act 30 of 1956, and when she became 'full owner' of that property she acquired a right unlimited in point of user and duration and uninhibited in point of disposition.''
The Supreme Court was of opinion that Kishan Devi was entitled to the property of her husband (under) Section 3 (2) of the Hindu Women's Rights to Property Act, 1937, after the death of her husband. In that case, she acquired the interest in the husband's property under Section 3 (2) of the Hindu Women's Rights to Property Act, 1937. It is on the basis of Section 3 (2) of the Hindu Women's Rights to Property Act that the Supreme Court held that she became the absolute owner under Section 14 of Act 30 of 1956 and she had the right to dispose of the property as an absolute owner. In my opinion, the decision of the Supreme Court does not apply to the facts, of this case. In the present case, the finding of the lower appellate court is that Raghunath died in 1930 or 1932 before the Hindu Women's Rights to Property Act came into force. If it is so, Most. Puniya was not entitled to the property of her husband, because the Hindu Women's Rights to Property Act did not come into force by that time. In this circumstance, I hold that she was not in constructive possession of the suit property in any legal sense. It is the settled law that Section 14 of the Hindu Succession Act will apply to a case where a woman is in constructive possession or is in physical possession of the suit properties. If it is found that a woman is not in constructive possession or in actual physical possession, then Section 14 of the Hindu Succession Act cannot apply. In the present case, I hold that Most. Puniya was not in constructive possession of the suit properties in 1930 or 1932 for the simple reason that Act No. XVIII of 1937 did not come into force, then. There is nothing on the record to suggest that she was in physical possession of the suit lands. In this circumstance, I hold that the decision of the Supreme Court, referred to above, does not apply to the facts of the instant case.
9. On these facts, the lower appellate court held that the suit properties were the joint family properties. They were never treated as separate properties of Raghunath between 1916 and 1964. In this connection, learned counsel for the respondents referred to the findings of the lower appellate court in para. No. 10 of the judgment which run as follows:--
"There is not even a chit of paper brought on the record by the plaintiffs to show that at any stage during these long years since the publication of survey record of rights 1916 till 1964 when Punia executed the kebala (Ext. 1) in favour of the plaintiffs, at any stage, Raghunath himself or his father or Most. Punia did any act to indicate that the property in suit was treated as separate acquisition of Fagu rather there are good many convincing evidence on the record to show that it was all along treated as a joint family property of the four brothers and after the death of Fagu, Raghunath and his uncles or heirs of uncles. It is admitted case of the plaintiffs that never during the lifetime of Raghunath rent receipt was issued in his name or he ever paid any chaukidari tax indicating separation of status. On the other hand the defendants have brought large number of rent receipts (Exts. A to A/28) and almost equal number of chaukidari receipts (Ext. B series), all in the name of Santokhi the defendant No. 1 and there are also rent receipts issued by State too besides private landlord. There is absolutely no explanation on the Dart of the plaintiffs as to why this total absence of any rent receipts or chaukidari receipts in the name of Raghunath or Most. Punia. Besides this the defendants have also brought on record some relevant documents to show that there was rent reduction proceeding (vide Exts. D and D/1) which show that Santokhi alone fought the rent reduction case in respect of Khata 34 in suit up to appellate stage. Exhibit C is signature of Santokhi on the rent reduction application which is Ext. C (1). Ext. F O is the rent reduction schedule. Exts. G. G (1) and G (2) are the original summonses in rent suits which show that Santokhi and other defendants were only sued in respect of the suit khata but Most. Punia is nowhere in the picture. Exts. H and H (1) are the certified copies of plaint of the rent suits and that too shows that Most. Punia is nowhere in the picture. All these documents give clear indication that at no stage Raghunath or Most. Punia ever indicated in any way that the property in suit to the extent of 1/4th share was his or her separate property."
In this para., the lower appellate court considered the rent receipts (Exts. A to A/28) and Chaukidari receipts (Ext. B series). On the basis of these documents, the lower appellate court held that these rent receipts and Chaukidari receipts suggest that they were issued in the name of Santokhi (defendant No. 1). In other words, the lower appellate court meant to say that if there would have been separation between the parties in 1938, then there would have been separate rent receipts in the name of Punia. In other words, there is no document on the record to suggest that there was separation between Raghunath and Santokhi. The onus was on the plaintiffs to show that Raghunath died in 1940 after the separation in 1938. The plaintiffs have not produced any documentary evidence to show that Raghunath died in 1940. On the other hand, the lower appellate court accepted the defence evidence and held that Raghunath died in 1930 or 1932. I accept the finding of the lower appellate court and hold that Raghunath died in 1930 or 1932. After discussing the evidence, oral and documentary, the lower appellate court rejected the case of the plaintiffs and I accept the same. I also hold that Most. Punia had no interest in the suit properties and, as such, the plaintiffs, purchased nothing but a bag of wind from Most. Punia by virtue of Ext. 1. To sum up, I agree with all the findings of the lower appellate court which has considered all the evidence, oral and documentary, and rejected the case of the plaintiffs. I, therefore, agree that the suit has been rightly dismissed by the lower appellate court.
10. In the result, the appeal is dismissed; but, in the circumstances of the case, the parties will bear their own costs of this court.