Dhanam alias Dhanalakshmi Ammal and Another vs Varadarajan

Govinda Menon, J.—The plaintiffs, who were the 2nd and 3rd wives of Pr. Srinivasa Mudaliar, who died on 15-12-1943, filed O. S. No.

37 of 1944 on the file of the Subordinate Judge''s Court, Velloro, for partition and recovery of possession of their share of the properties left by

the deceased Srinivasa Mudaliar. The suit was based on the ground that according to Act 18 of 1937, the Hindu Women''s Right to Property Act,

the widows are entitled to a share of the properties of the deceased husband in equal rights with those of any sons left behind by the deceased. As

Madras Act 26 of 1947 which enables the widows to claim their rights in agricultural lands as well had not come into force, when Srinivasa

Mudaliar died and when this suit was filed, in accordance with the decisions of the Supreme Court -- ''In Re a Special Reference u/s 213 of the

Government of India Act, 1935'', 1941 F. C. R. 12 and -- ''Meghraj v. Alla Rakhia'', 1942 F. C. R. 52, the plaintiffs are not entitled to claim a

share in the agricultural lands as legislation with regard to such lands can be undertaken after the coming into operation of the Government of India

Act, 1935, only by the Provincial Legislature. Since Act 17 of 1937 was by the Central Legislature, it cannot affect proprietary rights so far as

agricultural lands are concerned. So the lower court had to give a decree to the plaintiffs only with regard to properties other than agricultural

lands.

But the dispute centred round certain items mentioned in C. 2 and C. 4 schedule as well as items 1 to 4 in the D schedule. C. 2 schedule related

to certain mortgages executed in favour of Srinivasa Mudaliar, both simple as well as usufructuary, and the plaintiffs claimed their shares on those

mortgages. These mortgages were over agricultural lands. C. 4 schedule related to arrears of rent due to Srinivasa Mudaliar from tenants of

agricultural lands let into possession by him. Items 1 to 4 of D schedule related to certain moveables. The learned Subordinate Judge relying upon

two decisions of this court in -- ''Kotayya v. Annapurnamma'', ILR 1945 Mad 777 and --''Ramaswami v. Murugayyan'', ILR 1945 Mad 781. as

well as an unreported decision in -- ''A. S. No. 2 of 1944'' held that the plaintiffs are not entitled to a share because leases of agricultural lands and

mortgages of agricultural lands came within the definition of interest in agricultural property within the meaning of entry 21 in the 7th schedule to the

Act and could not be divided. It is against that decree that the plaintiffs have appealed.

We are now concerned with such of the items in the C. 2 schedule which relate to leases of agricultural property and mortgages over agricultural

property. It is clear from the various exhibits filed in the case that the deceased Srinivasa Mudaliar was a mortgagee; some of the mortgagees were

simple and the others usufructuary of some of the properties in the C. 2 schedule. He had also leased out to various tenants properties, the rents of

which have been mentioned in C. 4 schedule.

In -- ''Kotayya v. Annapurnamma'', ILR 1945 Mad 777, a Bench of this court held that Hindu Women''s Rights to Property Act, 1937 does

not confer upon a widow of a deceased Hindu coparcener any interest in a lease of agricultural lands obtained by the joint family. The same

learned Judges held in--''Ramaswami v. Murugayyan'', ILR 1945 Mad 781 that the Hindu Women''s Rights to Property Act, 1937, does not

confer on a Hindu widow any right to or interest in a simple mortgage of agricultural land executed in favour of her husband. To the same effect is

the decision in A. S. No. 2 of 1944 where the same learned Judges reaffirmed and reiterated what they had already laid down in the decisions

aforesaid. They also referred to the decision of the Federal Court, in -- ''In EC a Special Reference u/s 213 of the Government of India Act

1935'', 1941 F. C. R. 12, and held that the judgment of the Federal Court would apply equally to corporeal and incorporeal rights in land, which

meant that a Hindu widow was not entitled to any share in a mortgage on agricultural land.

This case comes before us on account of apparent conflict between the decisions above-mentioned and the judgment of our learned brother

Subba Rao J. in -- ''Veerayamma v. Venkanna'', 1951 1 M. L. J. 364. In that case the learned Judge held that since a mortgage debt apart from

the security can be transferred, a suit by a Hindu widow for a share in a mortgage debt under the Hindu Women''s Rights to Property Act, before

it was amended by Madras Act 26 of 1947 is maintainable. The learned Judge referred to the decisions in --Imperial Bank of India v. Bengal

National Bank'', 59 Cal 377 P. C. and -- ''Fanny Skinner v. Bank of Upper India''. 57 All 314 P. C. In those decisions the Privy Council has held

that apart from the security the debt as such can be transferred. The attention of the learned Judge was not invited to the two Bench decisions of

this court referred to. It seems to us that even if it is possible to consider the debt as differentiated from the security, still the interest in agricultural

lands in the debt does not cease as such.

Our attention was also invited to another unreported judgment in -- ''A. S. No. 142 of 1945''. In that case Leach C. J. and Kuppuswami Aiyar

J. have held that the Hindu widow was not entitled to a partition of mortgages because the Central Legislature had no power to legislate with

regard to agricultural lands. But the learned Judges also held that the widow is entitled to a share of the mortgage debt if it had already been

realised before the filing of the suit that is, if the mortgage debt had been collected and the money has come Into the hands of the coparcener as

such, then the interest in agricultural lands has already ceased, and such being the case, what was once a mortgage debt having become money in

the hands of the coparcener is liable to be divided.

Mr. G. R. Jagadisa Aiyar for the appellants also relied upon the decision of the Federal Court in -- ''Mt. Parkasa Kaur v. Mt. Udham Kaur'',

1947C 1 M. L. J. 127. We do not find that that decision can be of any help to the appellants, because Zafrullah Khan J. after referring to the

decision of the Privy Council in -- ''Imperial Bank of India v. Bengal National Bank''. 59 Cal 377 and quoting a passage from it, says that that

decision cannot apply because the property in the case before the Federal Court related to usufructuary mortgage for a term without any personal

covenant tor payment.

In our opinion the decision of this case depends on the principles enunciated in -- ''Kotayya v. Annapurnamma'', ILR 1945 Mad 777 and --

Ramaswami v. Murugayyan'', ILR 1945 Mad 781. In one of the cases it has been held that the leasehold interest in agricultural land is not liable to

be divided, and in the other that the mortgage interest in agricultural land cannot be divided. We find great difficulty in distinguishing that case from

the facts of the present case.

In -- ''Veerayamma v. Venkanna'', 1951 1 M. L. J. 364 Subba Rao J. after referring to the decisions in -- ''Imperial Bank of India v. Bengal

National Bank'', 59 Cal 377 and -- ''Fanny Skinner v. Bank of Upper India Ltd.'', 57 All 314 P. C. states as follows: ""From the aforesaid two

judgments it is clear that a debt, apart from the security, can be transferred though the debt could be realised by enforcing the security by the

mortgagee or assignee from him. If it is assignable as a debt ''simpliciter'' it is equally partible."" The fact that a debt can be assigned apart from the

security would not make the mortgage any the less interest in agricultural land. The learned Judge has not stated that the method of transferring the

debt apart from the security would take it away from the category of interests in agricultural property. In -- ''Megh Raj v. Allah Rakhia'', 1942 F.

C. R. 52 it has been held that land comprises both corporeal and incorporeal rights and interests. That is in cases where the agricultural land has

been subject to mortgage or leases it would include both corporeal and incorporeal rights and as such would not come within the Hindu Women''s

Rights to Property Act. We are therefore of opinion that the learned Subordinate Judge was right in refusing to allow partition of the leasehold and

mortgage interest in agricultural lands in C. 2 schedule to the plaint.

Mr. Jagadisa Aiyar wants us to make it clear that the mortgage over agricultural lands referred to in C. 2 schedule would not comprise items 2,

4, 5, 11, 12, 14. 15 & 16 because the 1st defendant in his written statement has admitted that these mortgages are over non-agricultural lands.

This position is not disputed by Mr. Thyagaraja Aiyar for the respondent.

With regard to the arrears of rent due from the tenants in agricultural lands in C. 4 schedule the matter stands on a similar footing. As laid down

in -- ''Kotayya v. Annapurnamma'', ILR 1945 Mad 777 rent due from such lands is interest in agricultural lands and therefore that also has to be

excluded from the operation of the Hindu Women''s Rights to Property Act.

The only other question, that remains to be considered is with regard to items 1 to 4 in D schedule. Mr. G.R. Jagadisa Aiyar contends that

these items have been entrusted to one Subramaniam, the guardian of the first defendant, after an inventory had been taken. According to the

inventory, it is stated that certain items have been exclusively given over to the plaintiffs and certain other items have been given over to the 1st

defendant through his guardian. No mention has been made of those items as to whom these should go and since they have been handed over to

the guardian of the 1st defendant, learned counsel contends that they are liable to be partitioned. We do not find any justification for this argument.

It is not shown that the movable properties handed over to the guardian are not those which have been specifically and definitely allotted and given

over to him. We do not think that there is any point in this contention as well. The appeal therefore fails and is dismissed with costs.