Chunduru Seshamma vs Chunduru Ramakoteswara Rao and others

Bhimasankaram, J.—This appeal is by the 1st defendant in O. No. 44 of 1949 on the file of the Subordina Judge, Tenali. She is the widow of one Appay(sic) who died on 19-3-1949 and according to the plaintiffs, intestate.

The suit was brought by the respondent 1 and 2 who are his divided sons, for partition and for separate possession of their share of t(sic) properties of the deceased Appayya. The 2 defendant who is the 3rd respondent is another son of Appayya while the defendant No. 3 w(sic) is the 4th respondent is the widow of one Gopal Krishnamurthy, a predeceased son of Appaya.

The 1st plaintiff separated from the jo(sic) family in the year 1927, the 2nd plaintiff in 19(sic) while the other members of the joint fam(sic) effected a partition in the year 1940. At the partition, the properties described in the pla(sic) schedule are stated to have fallen to the shall of Appayya. According to the plaintiff Appayya''s properties are to be divided into f(sic) shares each plaintiff getting one and the defendants 1. 2 and 3 getting one each. The 4th, 5th and 6th defendants are impled(sic)ed as lessees of some of the items of property. The plaintiffs also claimed a sh(sic) of the rentals due from them.

The 1st defendant in her written statement denied that Appayya died intestate a(sic) upon an unregistered will stated to have been executed by Appayya on 21-5-1948. She aimed that under that will, he had confirmed (sic)0 gifts made by him in favour of his two (sic)ughters and made a gift to a choultry and (sic)rther provided that all the rest of his pro(sic)rties except one item were to be enjoyed by (sic)r with absolute rights. She also pleaded that the 3rd defendant, the widowed daughter-in-law as not entitled to any share in the suit proper-(sic)s.

as the same cannot be deemed to be the (sic)parate properties of late Appayya for the purse of succession under the Hindu Women''s (sic)ghts to Property Act.

(sic)e, therefore, asserted that in the event of division, the other sharers will each be enti(sic)d to a fourth share and not a fifth as claimed the plaint. She also disputed the correctness the schedules given in the plaint. The 2nd (sic)endant supported her in his written statement The 5th and 6th defendants also filed (sic)eir written statements disputing their liabi(sic) to the plaintiffs.

The main issue in the case centred round genuineness or otherwise of the will set up the 1st defendant which is marked as Exhi-(sic)B-3 in the case. The trial Court found that will was not proved to have been executed Appayya Though the authenticity of the natures in the will was disputed, no attempt (sic) made by either party in the Court below to (sic)ain the opinion of a handwriting expert.

At an earlier hearing of this appeal on 23-2-5, we therefore, directed, at the instance of appellant, that Exhibit B-3, should be sent the Government Handwriting Expert for com(sic)ing the signatures therein with those in Ex(sic)t B-4, which contained some admitted signa(sic) is off late Appayya. The opinion submitted the Government Handwriting Expert is, (sic)nst the appellant.

We stated in our previous order that the par(sic) might make their submissions as to whether (sic) would like to examine the Hand-writing (sic)ert in person after the receipt of the opinion appellant does not desire to examine him are the respondents interested in examine him, as his opinion is in their favour. We (sic), therefore, proceed to discuss the oral evidence (sic) in the case in support of the will.

The case of the 1st defendant is that (sic)bit B-3 was prepared by D.W. 6 at the resident of Appayya on the date which it bears and it was attested by D..Ws. 2 to 4 at their (sic)ctive residences while the 2nd defendant la d to have attested it on 22-5-1948. As D.W. (sic)e 2nd defendant deposed that after the will drawn up by D.W. 6, the testator took it to (sic) 4, who is a doctor, who inserted his attest(sic)dgnature therein and that the testator d in It thereafter.

As the learned Subordinate Judge points out, could be no attestation before execution D.W. 4''s so-called attestation would be of (sic)ail, D.W. 4 who claims to be a registered (sic)cal Practitioner says that when he was in, hospital, the testator brought the instrument (sic)m and he attested it there. His hospital (sic)y near Appayya''s house. He asserts that Appayya put his signature on the three pages exhibit B-3 in his presence.

(sic)e admits that he is a. tenant of the house (sic)ing to Gopalakrishnamurthy, the 3rd defendant''s deceased husband which was let out to him by the testator. He admits that he did not treat Appayya in his last illness and his treatment was given up a month before Appayya''s death. While the 1st defendant says in her evidence that at the time when the will was executed, Appayya''s limbs were swollen, D.W. 4 gives a di(sic)e(sic)ment version saying that he was able to move about and in fact by the date of the will, he was better than before.

He further admits that he was present when the Commissioner appointed in the suit went to make an inventory of the articles in the possession of the 1st defendant. The learned Subordinate Judge thought that he was interested in the 1st defendant and was not inclined to attache much importance to his evidence. D.W. 2 is another attestor. He is a tenant of the 2nd, defendant though the lease was actually given by Appayya.

He admits that his "house was 20 houses, away" from that of Appayya, and that he had. dealings with him but does not remember whether he owed him any money by the date of the will on his death. He asserts that he asked Appayya if he would register the will and that, he was told that it would be registered in a few days. He says that he was formerly a tenant of the 1st plaintiff before he became a tenant of the 2nd defendant but he denies the suggestion that he vacated the 1st plaintiff''s premises because of disputes with him.

It must be remembered that the case of the 1st defendant is that Appayya did not want to get the will registered, because he was anxious, to avoid his sons getting to know of it.

D.W. 3 is the third attestor. He admit that all the properties he acquired in Tenall were lost and that he paid to his creditors "4 annas or 6 annas" in the rupee. According to him; Appayya brought the will to the factory (in the lease of which he claims to have a share) which is about one or two furlongs from Appayya''s house. He states that he was not asked to keep the will secret and that the will was read out to him though he does not remember the contents. D.W. 6 who is the scribe, is a clerk of 1st defendant''s advocate and he has been such for 16 years.

He is careful enough to say that he did not see the testator or attestors sign in Exhibit B-3. He merely wrote the body of the will on instructions from the testator. He. however, claims to have seen the will next day after it was signed and attested and says that he then inserted the sentence that the will was written by him and signed thereunder. He also claims to have asked the testator to register the will, and that he was told that the testator did not want to do so, as the sons might create trouble.

Though he knew that the will could be deposited with the Registrar in a sealed cover, he did not advise Appayya to do so. He says that he received a sum of Rs. 4/- for writing the will and that the payment was entered in the account book. The account book, however, it may be noted, was not produced. The learned Sub-ordinate Judge was disinclined to believe the case that Appayya wanted to keep the will secret because he apprehended, in the words of the 1st defendant, that "his sons would beat hint to death."

Is must be remembered that late Appayya was a 1st class Honorary Magistrate and that he died at the ripe age of 80. He was living in the town of Tenali and if he really wanted to make a secret will, he could have easily done so. The story deposed to by these witnesses about his having gone from place to place reciting the contents of the will and asking the attestors to attest the document cannot be true, if he did not want his depositions to be'' known to his sons.

In fact, none of the attestors says that Appayya asked him to keep the contents of the will secret. There is no satisfactory explanation why Appayya did not get the will registered, when it could have been so easily done or why he did not deposit it with the Registrar. It cannot be said that the evidence above summarised suffices to establish the execution of the will.

The learned Subordinate Judge has in our opinion, given good reasons for rejecting the oral testimony. We are not persuaded, that his finding is wrong. We may remark, in passing, that the conclusion reached by the learned Subordinate Judge is fortified by the opinion of the Government Hand-writing Expert.

Mr. Ramachandra Rao, for the appellant, has now raised, before us, a point of law based upon the Hindu Women''s Rights to Property Act. He conceded that it was not raised in the Court below. We have alls wed him to do so, however, because it is a pure question of law. The argument is based upon S. 3 of the Hindu Women''s Rights to Property Act (XVIII of 1937). We give below so much of S. 3 of the Act as is necessary for the purpose of considering his argument:

3 (1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-s. (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son;

(2) When a Hindu governed by any school of Hindu Law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-s. (3) have, in the property the same interest as he himself had.

It may be noted that while the first sub-section of S. 3 contains the words "dies intestate," the second sub-section does not. It is obvious, however, that this makes no difference because S. 2(which is not quoted) lays down that the Act Applies "where a Hindu dies intestate". The language of the Act, amended as it has been by a subsequent enactment involves difficulties of interpretation which are not made any the easier by the case-law which has been brought to our notice.

The contention for the appellant is that when Appayya died, he had, at the time of his death, an interest in a Hindu joint family property within the meaning of sub-s. (2) of S. 3 and that the 1st defendant, his widow, therefore became entitled to have therein the same interest as he himself had.

Before we discuss this submission, we may observe that the 1st defendant''s case in the written statement was that it "was "not the separate property of Appayya within the meaning the Hindu Women''s Rights to Property Act She stated that therefore the 3rd defendant was not entitled to any share and claimed that s(sic) would be entitled to a fourth share in the property along with her sons.

But, the stand now taken on her behalf that she would be entitled to the whole of t(sic) interest of her husband in the property of which he died possessed, that is to say, that the s(sic) would be liable to total dismissal apart from t(sic) will which she set up and which we have already found not to have been proved to have been executed by late Appayya.

Her present claim though it is not inconsistent with her averment that the property was r(sic) the separate property of Appayya, would he ever run counter to her concession that each her sans was entitled to a share along with h(sic).

There is also a petition, C.M.P. : 815 of 1957 presented on her behalf seek amendments of the written statement along the lines. On the other hand, there is also an plication filed on behalf of the plaintiffs, C.P. No. 1133 of 1957 seeking an amendment their plaint to enable them to aver that was their father died possessed was neither his s(sic) acquired property within the meaning of su(sic)

(1) of S. 3 nor "an interest in a Hindu j(sic) family property" within the meaning of Su(sic).

(2) of S. 3 and that their mother is not enti(sic)to a share at all.

Now both the appellant and the respondents before us rely for their respective petitions upon the decision of the Federal Court ported in Umayal Achi v. Lakshmi Achi, 19(sic) Mad LJ 108: (AIR 1945 PC 25) (A), which (sic) sides agree is binding upon us. In that (sic) their Lordships were dealing with a claim b(sic) widowed daughter-in-law to a share in the party of which her father-in-law died posse as the last surviving member of a Mitaks(sic) joint family.

Varadachariar, J.

who discussed the ma(sic) at considerable length and whose opinion on point was accepted by the other learned Ju(sic) expressed disagreement with the view of Madras High Court that the word "separate perty" covered every kind of property over w(sic) a person had disposing power. He observed the expression "separate property" may be antithesis of three other expressions, viz., cestral property,'''' "coparcenary property" "joint family property" and that it was r(sic)sary to determine in the light of the schen(sic) the Act, the particular sense in which the (sic)pression has been used here.

He pointed out that, judged by the te(sic) power of disposition, the expression might three kinds of property- (1) property obt(sic) by a Hindu as his share at a partition, (2) perty held by him as a sole surviving copar(sic) and (3). property acquired by him by his exertions without the assistance of family perty. He then proceeded to discuss the sc(sic) and purpose of the Act and ultimately re the conclusion that the words "separate perty" were used in sub-s. (1) of S. 3 of the to denote the third of the three kinds c property described above, that is to say, is known generally as self-acquired proper

The appellant contends that the deals with all kinds of property of which a dies possessed and if the property which (sic)ya had obtained at the partition with his sons is not the separate property within the meaning of sub-s. (1) of S. 3, it follows that it must be considered that he died possessed of "an interest in a Hindu joint family property".

The respondents, oh the other hand, would say that what Appayya died possessed was separate property of a kind not covered by sub-s. (1) of S. 3 and could not be properly described as an interest in a joint Hindu family property and that, therefore, it is a kind of property to which the provisions of the Act do not apply. There Is authority in support of both the contentions.

In Bhaoorao v. Chandrabhagabai, ILR 1948 Nag 465: (AIR 1949 Nag 108i (B), a Division Bench of the Nagpur High Court considered the applicability of the Act to a share allotted to a coparcener on partition. They pointed out that under the general Hindu law, the position of the divided son is superior to that of the widow in regard to succession to both self-acquired property as well as property obtained on partition.

Then they considered whether the Act made any difference to the position and came to the conclusion that the widow would only be entiled to a share in the self-acquired property of (sic)er husband and not in any other kind of separate property. They were referred to a decision of the Patna High Court in. Nandakumari Devi (sic) Bulkan Devi, ILR 23 Pat 508: (AIR 1945 pat (sic)) (C), a decision before that of the Federal court taking a contrary view but they held that was impliedly overruled by the Federal Court;

A Single Judge of the Madras High court declined, however, to follow this decision (sic) the Nagpur High Court in Subramaniam v. (sic)alyanarama Iyer, 1952-2 Mad LJ 575: (AIR 1953 (sic)ad 22) (D). In his view, the ruling of the (sic)ederal Court should be confined to the case of property in the hands of a sole surviving coparcener and that property obtained at a parties. On was separate property within the meaning of sub-s. (1) of S. 3.

With the greatest respect to the learned Judge, it seems to us that this view is directly posed to the whole basis and the reasoning the judgment of the Federal Court. Varada(sic)ariar J., made it plain that of all three senses which the expression "separate property" would be used, the Act used it only in one sense, (sic)e., to cover self-acquired property alone.

Further, one fails to see any difference between property obtained by a person as his share a partition and property held by him as a (sic)e surviving coparcener. Indeed, Varada(sic)ariar, J., points out that these two kinds of (sic)perty have the same features in common and (sic)nd apart from self-acquired property. The owing observation from his judgment are ap(sic)ite in this context:

There is. however, this difference between m, viz., that in the case of self-acquired property, the owner''s power of disposition will con(sic)ue to remain undiminished throughout his time, unless he chooses voluntarily to throw into the joint family stock, whereas, in the (sic)e of the other two kinds of property, His (sic)er of disposition will become qualified and interest reduced the moment a son is born him or the widow of a predeceased coparce(sic) takes a boy in adoption.

It would not therefore be right to place these (sic)e kinds of property on the same footing merely on the ground that at a particular point of time, the owner may enjoy unrestricted powers Of disposition over them.

In our judgment, the decision of A.N. Subramanian, late a minor by G.S. Lakshmi Ammal, as next friend but now having attained majority Vs. A.S. Kalyanarama Iyer and Others, runs counter to the ''Ratio'' Decidendi'' of the decision of the Federal Court.

Mr. Ramachandra Rao for the appellant, however, relied strongly on Visalamma v. Jagannadha Rao, (S) AIR 1955 Orissa 160 (E), which is a decision of a Division Bench of the Orissa High Court. There, the learned Judges were dealing with the property of a Hindu father who had effected a partition with his only son and the con test before them was between his son and his widow.

They held that Ramayya Nayudu, the owner, died possessed of an interest in a Hindu family property within the meaning of sub-s. (2) of S. 3 and that his widow became entitled to the same interest in it which he had, i.e., the entire 16 annas interest. They declined to follow the decision in AIR 1949 108 (Nagpur) as well as that in A.N. Subramanian, late a minor by G.S. Lakshmi Ammal, as next friend but now having attained majority Vs. A.S. Kalyanarama Iyer and Others, They first discussed the question whether the disputed property was separate property within the meaning of sub-s. (1). Holding that it was not, they proceeded to make the following observations:

This conclusion however does not solve the difficulty.

Two other questions are:

(i) If the properties do not come within the scope of sub-s. (1) of S. 3 can they be held to be ''joint family properties'' within the scope of sub-s. (2) of S. 3?

(ii) Do the disputed properties form a separate class of their own to which the provisions of the Act do not apply at all?

It appeared to the learned Judges that, on a fair construction of the Act, it was intended to cover properties of all classes of Hindus by whatever school or custom they may be governed. They went on to say:

Neither in the preamble nor in any. other section of the Act are found words which either expressly or by implication justify the inference that the Act was not intended to be exhaustive so far as various classes of properties of a Hindu dying intestate are concerned. The only class of property that is excluded from the operation of the Act is that described in sub-s. (4) of S. 3.

That sub-section, it may be noted incidentally, relates to an estate descendible to a single heir or other property to which the Indian Succession Act, 1925. applies. The learned Judges found support for their view in AIR 1943 196 (Privy Council) and in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, (G). With the utmost deference, we.find ourselves unable to appreciate the reasoning of the learned Judges.

In the first place, we must point out that the actual words used in sub-s. (2) of S. 3 are "an interest in Hindu joint family property". This expression seems to us to posit (l) the existence of a Hindu joint family and (2) the person dying having an interest in property belonging to that family. It would. In our opinion. be straining the language beyond all reason, to say that what a person obtains as a share on partition or what he holds as the sole surviving coparcener, is an interest in a Hindu joint family property.

It seems to us that the reasoning of Varadachariar J., excludes the possibility of any such construction. He refers to the passages in Mulla''s Hindu Law describing the three kinds of separate property and the course of ''devolution in the case of each and indeed seems to approve of them. He does not think it inappropriate that the three kinds of property referred to by him should be described as separate property.

He could have easily stated that what is not self-acquired property would be an interest in a Hindu joint family property falling under sub-section (2) of S. 3 if the position was so simple and clear. The illustration that he gives at page 33 of the report AIR 1945 25 (Federal Court) on the other hand seems clearly to support the view that he did not think that what not self-acquired property is necessarily an interest in a Hindu joint family property. He says:

If A and B were undivided brothers and the family property passed by survivorship to B, on the death of A leaving a widow, B would be the last surviving coparcener with the possibility of A''s widow taking a boy in adoption. According to the recent decision of. the Judicial Committee in 1943-2 Mad LJ 599 : (AIR 1943 PO 196) (F), A''s widow can exercise her power to adopt, even after the family property had devolved on B''s widow by inheritance; the result of her so adopting a boy would be to divest B''s widow of the whole estate..

Even if the adoption should take place after the Act had come in operation, B''s widow could derive no benefit by relying upon sub-s. (I) of S. 3. The only possibility of calling of the Act to her aid is by the application of sub-s. (2) of S. 3 if a double fiction could be imported so as to justify the assumption not only that the joint family was being continued by the adopted boy bait that B must-be deemed to have died after the adoption.

On this assumption, B''s widow could retain a half of the estate as against the adopted son of A, only if B''s ownership could be described as an ''interest in the joint family property''. The possibility of such varying consequences cannot be allowed to control the natural and reasonable interpretation of the Act.

This (sic)age seems to imply that even in a case where one of the possibilities whereby such separate property can become joint family property has materialised, a double fiction would be necessary to enable the widow to invoke the aid of the Act. He seems to imply a doubt whether such a double fiction could be imported.

This passage fortifies our conclusion that the learned Judge was not inclined to consider that two of the three kinds of separate property Referred to in Mulla''s Hindu Law could always be described, merely because of the potentiality of their being convertible into joint family property in certain contingencies, as an interest in a joint Hindu family property.

We entertain no doubt that fictions could not be resorted to for the purpose of interpreting statutory provisions. There can be little doubt that under, the general law, property obtained by a Hindu at a partition or held by him as the sole surviving member of a coparcenary is descendible as separate property just as it could be disposed of by the person holding it as separ(sic) property, subject, of course, to the qualification that in cases where it becomes joint family property in his hands by birth or adoption, his disposing power as well as the course of devolution would be erected.

The passages relating to these two kinds of separate property in Mulla represent the true position under the general Hindu Law and that position remains unaffected by the Act.

It is true that their Lordships of the Privy Council in 1943-2 Mad LJ 599: (AIR 1942 PC 196) (F), accepted the view of the Nagpur High Court embodied in the following passage:

We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member.

Does this, however, mean that when sole surviving co-parcener dies without an widow in the family capable of making any a(sic) option, he must be deemed to have died as member of a joint Hindu family? We thin not.

We would like also to observe that the learned Judges of the Orissa High Court use the words "joint family properties" in form(sic)lating the question for determination instead (sic) "an interest in a Hindu joint family property A further observation to be made is that if sue property might be described as an interest a joint Hindu family property, the owner would have no disposing power over it.

It would be anomalous to hold that a parson can have an interest in a Hindu joint family property over which he has disposing power which would be the result if the view of the learned Judges is accepted. In this connection, is perhaps not unworthy of notice that sub (2) omits the words "dies intestate" occurring the first sub-section presumably for the reas(sic) that there is an underlying assumption the such property is not capable of testamentary d(sic) position.

Further, in our opinion, the Act d(sic) not deal with all kinds of property of which Hindu dies possessed. Indeed, Varadachariar judgment shows that it does not. He gives illustration to show that, it does not apply a particular kind of separate property, for, says:

When a "son is born to A, the owner o(sic) share obtained on partition, the father and (sic) will become co-parceners and if the son should predecease the father, the son''s widow w(sic) get his share under sub-s. (2) of S. 3. If, at (sic) stage, the father-in-law and the daughter-in-law should divide the property, the father-in-law would be the owner of his share.

Should this share be treated as "sepa(sic) property" within the meaning of sub-s. (1) S. 3, the result might be that, at the father law''s death, his widow would have to share again with the predeceased son''s widow (sic) withstanding the fact that the latter had ready taken a half share as representing husband. If it is not treated as separate perty within the meaning of the Act, the father-in-law''s widow would ''succeed to her husba(sic) share under the ordinary Hindu Law''.

There Is no force in the criticism that such a construction assumes that the legislation has not dealt with all conceivable cases. Obviously that was not the purpose of the measure.

The italics (here into ''(sic)'') are ours).

This passage seems to assume that the father-in-law''s widow would succeed to her husband''s share under the ordinary Hindu Law instead of getting it under sub-s. (2). Therefore, he learned Judge does not treat it as an interest in a Hindu joint family property and he is dear that the Act does not deal with such property and in his view, the Act does not purport (sic)o deal exhaustively with all kinds of property of which a Hindu died possessed.

As regards the reliance placed by the earned Judges of the Orissa High Court, upon he observations of the Supreme Court in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, , as they themselves point out, the observations made (sic)erein

were made while discussing the properties that devolved on a sole surviving coparcener (sic)om his father and grand-father at a time when here was a widow capable of making an adop-(sic) on.

(sic)though we agree with the learned Judges, that here is no distinction in principle between the (sic)se of a sole surviving co-parcener and a father (sic)ho has effected partition with his son, we cannot agree that the mere possibility of a co(sic)arcener coming into existence by birth or addition would make the property "the property of (sic)indu joint family" even in cases, where the (sic)assibility has not been or cannot be realised. It appears to us, therefore, that the decision the Supreme Court is of no assistance to us interpreting the terms of the Act.

We are unable, therefore, to agree with the view taken by the Orissa High Court and we (sic)efer that adopted by the learned Judges of (sic) Nagpur High Court in ILR 1948 Nag 485: (AIR (sic)9 Nag 108) (B).

As a result of the foregoing discussion, are of the opinion that sub-s. (1) of S. 3 of (sic)e Act deals only with the self-acquired property of a deceased Hindu and neither that sub-section nor sub-section (2) deals with the two (sic)egories of separate property represented by at a Hindu holds as a sole surviving copar(sic)er and what he has obtained at a partition as (sic) for his share.

Since preparing the above judgment, have come across a report of the decision Rajamannar C.J. and Ramaswami J., of the (sic)dras High Court in A.N. Subramanian late minor by G.S. Lakshmi Ammal Vs. A.S. Kalyanarama Iyer and Others, against decision of A.N. Subramanian, late a minor by G.S. Lakshmi Ammal, as next friend but now having attained majority Vs. A.S. Kalyanarama Iyer and Others, . (sic)ile disagreeing with Krishnaswamy Nayudu that property obtained by a Hindu at a parti(sic) was separate property within the meaning S. 3 (1) of the Act, the learned Judges held (sic)t such property.

must be deemed to be an interest in Hindu (sic)t family property within the meaning of s. (2) of S. 3.

(sic) expressing their view, the learned Chief Jus-stated as follows on behalf of the Bench:

If the fact that on the birth of a son. such would have a right by birth in the property (sic)ined by a coparcener at a partition prevents from holding that such property is separate (sic)erty, It follows from that very fact that it should be deemed to be joint family property. As pointed out by the Privy Council in AIR 1943 196 (Privy Council) ), a coparcenary must be held to subsist so long as there was in existence a widow of a coparcener capable of bringing a son into existence by adoption. In that very case, their Lordships of the Judicial Committee referred to the property held by a surviving coparcener as joint family property in his hands. Likewise, It should be held that the property which a coparcener obtains at a partition is joint family property though the coparcener may after the partition, have absolute powers of alienation so long of course as there is no son born to him after the partition, who would on birth be entitled to a share in such property.

They expressed their agreement with the view taken by the Orissa High Court in (S) AIR 1956 Orissa 160 (E), so far. They, however, voiced a doubt as to whether the Orissa High Court were right in holding that the widow in such circumstances would be entitled to the whole of the property of which her husband died possessed. In that connection, they made the following observations :

The more, difficult point which, however, does not fall for decision in this case is what is the share to which the widow would be entitled in a case like the present? Will she be entitled exclusively to the property left by her husband or should she share it with the two divided sons?

In the Orissa case (AIR 1955 Orissa 160) (E). the learned Judges held: that the widow would be entitled to the entire interest to the exclusion of the divided son. It may be a matter for argument that if the property held by the divined member of the family is deemed to be joint family property, the other member of the erstwhile coparcenary must also be deemed to have an interest in them.

This very doubt expressed by the learned Judges seems to us" to be destructive of the interpretation put by them upon the language of the Act. The general Hindu Law does not enable a divided member to claim any interest in the share taken away by another divided member. But if we assume that such a share is an interest in a Hindu joint family property we should be making an inroad upon the general Hindu Law as a consequence of this interpretation of this Act - a result which would hardly have been in the contemplation of the Legislature which was concerned merely "to give better rights to women."

If the learned Judges'' implication is right, even the testamentary capacity of the owner of such a share might be affected. We have, therefore, ventured to adhere to the view we have expressed above, despite the great respect with which we reeard the learned Judges of the Madras High Court.

The result of our above interpretation of the Act is that the sons would be exclusively entitled to the whole of the property left by Appayya. But, we cannot overlook the fact that each of the plaintiffs sought only a fifths share in the properties while the widow asserted that she was entitled to a fourth share along with her sons.

The trial Court has given each of the plaintiffs a fourth share on the basis of the widow''s contention. We do not think it would be propel for us to allow the plaintiffs to amend the plaint and claim a considerably larger share than that. Indeed, in the plaint, they conceded the right of the 1st defendant the widow, to a share in the property. So their application for amendment.C.M.P. No. 1133 of 1957 must fail and is. dismissed.

C.M.P. No. 815 of 1957 filed on behalf of the 1st defendant must fail not only on the ground that it is too late to seek such an amendment but also on. the ground that the claim based on the amendment sought is unsustainable. Therefore this application is also dismissed.

We shall now deal with the memorandum of cross-objections presented by the 2nd plaintiff. This relates to issues 2 and 4 decided against the plaintiffs by the lower Court. These issues are:

Whether the late Appayya was the owner of item 2 and D. No. 16/1 of item 5?

What items of B and C schedule did Appayya die possessed of?

We shall first deal with issue 2. This item is a house In the town of Tenali the site on which it stands was purchased under three sale-deeds Exhibits B-5, B-7 and B-8 in all of which the 1st defendant was the vendee. But, it appears from Exhibits A-3 and A-4 entries in the day-books kept by Appayya that the consideration for the purchases under Exhibits B-7 and B-8 was paid by Appayya while there is no evidence as to who paid the consideration of Rs. 1,775/- relating to Exhibit B-5.

Exhibit A-9, a partition book shows that in the last partition of 1940 between Appayya and his sons, this house was also to be divided. But, there seems to have been an agreement between the parties that they should pay a sum of Rs. 3600/- to the 1st defendant in order to entitle them to do so.

The 1st defendant had claimed in an earlier litigation that the purchases under Exhibits B-5 and B-7 were effected with her own money and that the purchase under Exhibit B-8 was made by her husband for her benefit by way of provision for her maintenance. She, therefore, claimed that the property belonged to her but added that it was agreed that the joint family should acquire the property from her on payment of a sum of Rs. 3600/-.

It does not appear- and there is no case to that effect -That this sum of Rs. 3,600/-was paid to her by the members of the family. Further, in a compromise effected between Appayya, the 2nd defendant and the 1st defendant, Appayya and the 2nd defendant recognised the title of the 1st defendant to this house as well as to item No. 5 (2) of Exhibit A-1 schedule. Appayya himself having admitted the title of the 1st defendant to this item; the plaintiffs, as his heirs, cannot claim an interest in this" property.

Even in regard to the demarcation No. 16/1 out of item 5 of plaint A-1 schedule Appayya recognised the 1st defendant''s right thereto in the aforesaid compromise. For the same reason as that which applied to the former item, the plaintiffs cannot claim a share in this item too. These submissions on behalf of the cross-objector must fail.

As regards issue No. 4, the lower Court found that Appayya died possessed of moveables mentioned in Exhibit A-6, the partition book of 1940, except those mentioned in Exhibit B-19, the compromise decree already referred to. In(sic) that compromise, the 1st defendant''s right to certain moveables claimed by her in Exhibit B-17 her written statement in that suit, was conceded.

Therefore, the learned Subordinate Judge held that those moveables should be excluded from those mentioned in Exhibit A-6. He also further provided that if there are any items as per the list of admitted moveables filed along with the written statement of the 1st defendant they would also be liable for partition.

The learned counsel for the 2nd plaintiff has been unable ft) show how this finding is wrong In the result, both the appeal and the cross objections are dismissed with costs. In the appeal respondents 1 and 2 only will get costs.