Chinnappa Gounder and Another vs Valliammal

Ismail, J.—The two defendants in O. S. No. 357 of 1961 on the file of the Court of the District Munsif of Erode are the appellants before

this Court and the plaintiff in the suit is the sole respondent. The respondent''s husband Perianna Gounder and the first appellant were brothers and

the second appellant is their sister. Perianna Gounder died in 1944. Subsequent to his death on August 16, 1944, Periathambi Gounder, father-in-

law of the respondent and the father of the deceased Perianna Gounder and the appellants, executed a document described as a maintenance deed

in favour of the respondent in respect of two items of property.

That document recited that when the respondent requested her father-in-law to give her maintenance, at the instance of mediators, he executed the

said document. The document also stated that she should reside in one of the items which was a house and should cultivate at her pleasure the

other item which was a piece of land and enjoy the income therefrom for her life towards her maintenance without any power of alienation by way

of mortgage, othi or sale and on her death, the two items of property should belong to her father-in-law and his heirs. It is stated that the father-in-

law himself died in 1960. Thereafter, the respondent instituted the suit out of which the second appeal arises for partition of her one-fourth share in

the suit properties and for separate possession of the same. I must straightway mention that the suit properties are one-half of the properties

belonging to the joint family. It is conceded before me that the respondent is entitled to one-fourth share of the suit properties by virtue of the

proviso to Section 6 read with Section 8 of the Hindu Succession Act of 1956. The reason is that though the father-in-law of the respondent and

the first appellant constituted an Hindu undivided family, by virtue of the provision contained in the proviso to Section 6 of the Hindu Succession

Act, 1956, his undivided interest in the Joint family properties would devolve by way of succession and will not go by way of survivorship. If that

be the case, his interest in the property was divisible as between the respondent, daugher-in-law, the two appellants, son and the daughter and his

own widow. However, the appellants herein contended that she cannot ask for a partition of her one-fourth share of the properties and at the same

time retain the properties covered by the maintenance deed of August 16, 1944, and she must make the properties got by the said document

available for partition in the suit, since the appellants also have a share in the said properties. The Courts below rejected this contention and

decreed the suit of the respondent. Hence the present second appeal by defendants 1 and 2 in the suit.

Mr. N. Sivamani, learned Counsel, for the appellants, contended that the respondent herein cannot retain the properties covered by the

maintenance deed and also ask for partition of her one-fourth share in the suit properties and if she wants partition of one-fourth share, she must

surrender those properties and make the same available for partition in the suit itself. Mr. Sivamani frankly concedes that there is no direct authority

with reference to the position after the coming into force of the Hindu Succession Act of 1956; nor is there any specific provision in the said Act

which will have the effect he contends for. At the same time, the learned Counsel submits that on the analogy of the position prevailing under the

Hindu Women''s Rights to Property Act, 1937, under the Hindu Succession Act also, the respondent can have either the properties given to her

for maintenance or have a share in the properties granted to her by the provisions contained in the Act of 1956 and she cannot have both.

I may point out here that the position as it stood prior to the Hindu Succession Act of 1956 is clear and does not admit of any doubt. A Bench of

this Court in Rathinasabapathy Pillai and Another Vs. Saraswathi Ammal, pointed out that there is nothing in the Hindu Women''s Rights to

Property Act, 1937, which has the effect of compelling the three widows for whom provision was made under that Act to sue for a partition at the

risk of losing the right to maintenance which they had under the Hindu Law and stated that the option was with the widows either to claim

maintenance to which they were entitled under the Hindu Law or to ask for partition under the provisions of the Hindu Women''s Rights to

Property Act, 1937, but not to have both.

The principles enunciated by that decision were approved by another Bench of this Court in Gajavalli Ammal and Another Vs. Narayanaswami

Mudaliar, . The appellants in that case were the widow and daughter of one Govindaswami Mudaliar who had left a son by his first wife who was

the respondent to the appeal. The said Govindaswami Mudaliar died on November 21, 1953 and at the time of his death he and his son

Narayanaswami (respondent) were members of a joint Hindu Family. The suit was brought for partition and possession of a half-share in the family

properties as the share due to the first appellant who claimed her husband''s share under the Hindu Women''s Rights to Property Act, 1937. On

behalf of the second appellant a maintenance provision was claimed and marriage expenses also were asked for. The claim of the appellants was

resisted on the strength of a settlement deed dated December 17, 1953. It was pleaded by the respondent that the said settlement was eSected in

full settlement of all the claims against her husband''s joint family properties and consequently she could not sue for partition. The learned Judges of

this Court came to the conclusion, on the basis of the evidence and the circumstances of the case, that by arrangement embodied in the settlement

deed and by the acceptance of the properties given in the settlement deed, the widow had given up her right to claim half-share in the joint family

properties under the Act of 1937. In this view, they accepted the case of the respondent and rejected the claim of the appellants for partition of a

half-share in the properties. In dealing with this question the learned Judges observed as follows:-- at page 189.

What the position would be by reason of the enactment of the Hindu Succession Act, 1956 is not a matter arising for our consideration now. The

limited question we are called upon to decide is whether the settlement deed was the result of a claim for maintenance alone and consequently we

would be justified in concluding that the acceptance of the settlement deed did not imply the giving up of the right to partition and to claim a share

under the Act of 1937"".

Mr. Sivamani, learned Counsel for the appellants, relies on the first sentence quoted above and states that the learned Judge left open the question

as to what would be the position under the Hindu Succession Act, 1956, and the position under the Act will be the same, that is, the widow (in this

case, the daughter-in-law) will be entitled either to a share in the properties or to maintenance but not to both.

In my opinion, the sentence relied on by the learned counsel for the appellants does not lend support to any such contention. On the other hand,

the said sentence may lead to a contrary inference. As far as the provisions of the Hindu Succession Act are concerned, there is no provision either

express or implied which will have the effect ot terminating or putting an end to an interest created in an immovable property in favour of a person

like the respondent herein in discharge of an obligation resting on the father-in-law of the respondent. A reading of Ex. B-1, namely, the document

styled as maintenance deed of August 16, 1944, makes it clear that a life interest was created in favour of the respondent.

Under the Hindu Law, prior to the enactment of the statutory provisions, a manager of a joint Mitakshara family is under a legal obligation to

maintain all male members of the family, their wives and their children; on the death of any one of the male members, he is bound to maintain his

widow and his children, the obligation to maintain these persons arises from the fact that the manager is in possession of the family property. The

maintenance deed of August 16, 1944, was executed by the father-in-law of the respondent in discharge of this obligation imposed upon him under

the Hindu Law. It may be that if the Hindu Succession Act had not been passed, the respondent might not have any right to file a suit for partition

of a share in the properties retaining at the same time the properties obtained by her by virtue of this maintenance deed.

However, the position is not the same with reference to the provisions contained under the Hindu Succession Act, 1956. The said enactment

effects a basic and fundamental change in the Hindu Law of Succession and the right to succession conferred on the various persons mentioned in

the schedule to the Act are not subject to any qualification such as the one contended for before me. As a matter of fact, in relation to an Act like

the Hindu Succession Act of 1956, which is both an amending and codifying statute, regard should be had only to the clear language contained in

the Act. Mr. Sivamani himself frankly conceded that he is not able to lay his hands on any particular provision contained in the statute in support of

his contention.

In the absence of any express provision contained in the Act providing for the termination of the interest created in favour of a person like the

respondent by way of maintenance due to her under the law then in force, I am unable to accept the contention of the learned Counsel that the

necessary consequence of the respondent filing a suit for partition to claim her right under the provisions of the Hindu Succession Act, 1956, is to

bring about a termination of the life interest created in her favour under the document dated August 16, 1944. If such an interest has not been

created by the time when the Hindu Succession Act, 1956, came into force and the respondent was merely receiving maintenance from her father-

in-law out of the joint family properties, the position may be different. But, when the right to receive maintenance which the respondent

undoubtedly had, has crystallised in the form of creation of a life interest in her favour, I am unable to find any principle or authority for holding that

that interest automatically comes to an end as soon as she files a suit for partition for recovering her Share of the properties under the provisions of

the Hindu Succession Act, 1956.

I must also point out that it is not the case of the learned Counsel that the Act Itself has got the effect of terminating the interest created in favour of

the respondent and it is only her conduct in filing the suit for recovering her share which has got such an effect. The learned Counsel bases this

contention on the analogy of the position that resulted from the provisions contained in the Hindu Women''s Rights to Property Act, 1937. In my

opinion, there is no comparison whatever and there can be no analogy between the rights which the three widows had under the Hindu Women''s

Rights to Property Act, 1937, and the right which the various heirs get under the Hindu Succession Act 1956 and therefore there is no justification

whatever for importing the position under the earlier Act by way of analogy into the position under the 1956 Act.

Mr. Sivamani, drew my attention to the provisions contained in the Hindu Adoptions and Maintenance Act, 1956 and particularly to Sections

19, 21 and 22. Section 19 of that Act deals with the right of a daughter-in-law to obtain maintenance from her father-in-law and the circumstances

and the extent to which such a right can be enforced. As far as the present case is concerned, such a question does not directly arise. It is not a

case where the respondent, having obtained her share pursuant to the Act of 1956 is seeking to obtain maintenance by virtue of the provisions

contained in the Hindu Adoptions and Maintenance Act, 1956 with reference to the right which the respondent claims in the present suit.

Mr. Sivamani, relied ""on a decision of the Bombay High Court in Melappa and Another Vs. Guramma and Others, . In that case, a number of

alienations were challenged and two of them were alienations effected in favour of two female members. In a suit for partition, the learned Judges

took the view that they cannot retain the property covered by the said alienations and at the same time seek to recover a share under the

provisions of the Hindu Women''s Rights to Property Act, 1937. The learned Judges stated as follows:--

The result is that although defendant 3 cannot challenge the deeds Exs. 368 and 372 in the sense mentioned above since defendants 1 and 2 are

now given a share in the family property, defendants 1 and 2 cannot retain the property under the two deeds, Exs. 368 and 372 and, at the time,

claim a share in the family property"".

No reasons have been given for the said conclusion. Probably the reason was the same as has been referred to by the two Bench decisions of this

Court already mentioned by me. However, that being a decision prior to the Hindu Succession Act, 1956, Mr. Sivamani cannot derive any

assistance from that decision in support of his present contention, Mr. Sivamani also drew my attention to the fact that this decision of the Bombay

High Court has been affirmed in the appeal by the Supreme Court in Guramma Bhratar Chanbasappa Deshmukh and Another Vs. Malappa, ;

there again the view of the Judges of the Bombay High Court referred to by me already was not challenged and as a matter of fact the correctness

of that position was conceded. In view of this, independent of the judgment of the High Court, the decision of the Supreme Court does not afford

any guidance or lend any support to the argument of the learned Counsel.

Mr. Sivamani wanted to argue that the properties covered by the deed dated August 16, 1944 being the joint family properties, the father-in-

law of the respondent has no right to make a gift of the same to the respondent Mr. Sivamani, however, frankly stated that such a point was not

raised before the Courts below nor even in the grounds of appeal before this Court, but contended that as a point arising on the face of the

document it could be urged by him before this Court. Apart from the fact that such a point was never put forward before the Courts below, I am

of the opinion that there is no substance in the said contention also.

In the first place, the transaction evidenced by the document dated August 16, 1944, cannot be said to be a gift. I have already mentioned the legal

position that a manager of a Hindu joint family is bound to maintain all the members of the coparcenery as well as their wives and their children.

Therefore, on the date when the said document was executed, the respondent had a right to be maintained out of the family properties and only in

discharge of the corresponding obligation, the said document was executed. Therefore, in my opinion, the document did not constitute a gift and

consequently it is not open to the objection put forward by the learned counsel. Mr. V.S. Rangaswami Iyengar, learned counsel for the

respondent, points out that it is not open to the appellants to put forward such a contention because they themselves have affirmed the transaction

evidenced by the document in the written statement filed in this case and their only case was that while the respondent claims a share in the

properties, she should surrender the properties obtained by her under the said document and that it was not their case that the document itself was

void or Inoperative. I see considerable force in this argument also. In any event, as I have already indicated, the transaction evidenced by the

document dated August 16, 1944, cannot be said to be a gift and therefore is not open to the challenge put forward by the learned Counsel for the

appellants.

No other question has been urged in this appeal.

Under the circumstances, the second appeal fails and is dismissed. There will be no order as to costs.