Govindammal and others vs Ramaswami alias Raja Pillai and others

Veeraswami, J.—The plaintiffs, who are the appellants in App. No. 155 of 1961, sued for partition and separate possession of 7/16th share

in the joint family properties, but have been granted by the court below a preliminary decree for only a 7/24th share in the properties found to be

partible. They have appealed from the decree in so far as it is against them. The quantum of the share they claimed was reduced on account of the

preliminary decree in favour of the third defendant for 9/24th share. The court below held that on the death of the third defendant''s husband in

August, 1950, she became entitled to his one-third interest in the joint family properties under the provision of the Hindu Women''s Rights to

Property Act, 1937, that the repeal of this Act by the Hindu Succession Act of 1956 did not affect her interest and that by reason of S. 14(1) of

the latter Act, she became the absolute owner of the third share. The entire argument for the appellants before us has been confined to the

propriety of this view which raises two questions--(1) the effect of the repeal on the third defendant''s interest under the earlier Act and (2) the

applicability to it of S. 14(1) of the latter Act. The first plaintiff is the widow of one Shanmugham Sundaram Pillai who died on 12th June, 1958,

leaving her, a son and a daughter, both minors who are plaintiffs 2 and 3 respectively. The first defendant is the brother of Shanmugham Sundaram

Pillai and their mother is the third defendant. Then father Narayanaswami Pillai died in August 1950 leaving his widow, the third defendant and his

divided brother, the second defendant. On 8th September, 1958, the first plaintiff sent a notice to the first defendant demanding partition of the

joint family properties and making certain other claims in relation to jewels and mesne profits. In the suit for partition which she filed subsequently

for herself and on behalf of her minor children, there was no dispute that they would be entitled to partition and separate possession of their share,

but the parties were at issue among other matters, as to the total quantum of the share the plaintiffs were entitled. The preliminary decree in so far

as it settled other matters in controversy in the court below, is not questioned before us.

As to the quantum of share the plaintiffs are together entitled, the view of the court below, in our opinion, is correct, namely, the third

defendant''s right which are acquired under Act XVIII of 1937, was not a lost to her by force of the repeal of that Act by Act XXX of 1956. The

result of this would be that the first plaintiff''s husband would only be entitled to a third and not a half share at the time of his death. It is admitted

that under S. 3(2) of Act XVIII of 1937, the third defendant, on her husband''s death, became entitled to the same interest as he himself had in the

joint family properties. But it is pressed upon us for the appellants that its only effect was that survivorship in relation to his death remained

suspended until her death and that during her lifetime her only right was to ask for a partition and separate possession of her husband''s share in

which she would have but a limited estate, but she having not worked out that right, it disappeared in consequence of the repeal of Act XVIII of

1937. The appellants also deny that prior repeal any right or privilege had been acquired by or accrued to the third defendant under the provisions

of the repealed enactment so as to attract the saving by S. 6 of the General Clauses Act, 1897. On the other hand, proposition for the third

defendant is that in its nature, quality and legal effect, the interest acquired by'' the third defendant under Act XVIII of 1937 was identical with that

of her husband which meant she had a right to alienate that interest, to interdict its alienation by the manager of the joint Hindu family as being not

for binding purposes, to ask for partition and separate possession of that interest and that such interest was liable to attachment and sale in

execution. It is said, therefore, that the interest of the third defendant was a proprietary right which could properly be regarded as having been

acquired by or accrued to her under Act XVIII of 1937.

We have no hesitation in accepting the contention for the third defendant. The character of the interest of a coparcener under the Mitakshara

school of Hindu law is well settled. Many things are rolled into it which include the concept that the joint family as a unit owns the coparcenaries

property as a whole and no member of the coparcenary, so long as the jointness continues, can claim any defined share of interest as being his

crystalised right. His interest in the joint family property is indefinite in quantum which may fluctuate by births and deaths in the joint family under the

rule of survivorship and the right of a coparcener at any that is but to ask for a partition and separate possession of his share. On the death of a co-

parcener, his interest in the coparcenary, so to speak, devolves by survivorship and not by succession to him. But having said that, it is too late

now to deny the inroads made into such a conception which out of necessities of life, have been well recognised by Courts and Legislatures. ID

fact some of the inroads have been made by them on grounds of policy or equity or justice, and the character of the interest of a coparcener under

the Hindu law cannot be judged without reference to them. The resulting position is that the interest of a coparcener in the joint family property,

while it is subject to the incidence of the coparcenary law, is obviously a proprietary right which he is entitled to alienate the alienee thereby being in

a position to work it out by means of partition and separate possession, as against the rest of the members of the coparcenary and in fact, to ask

for in equity, allotment to him of the very property conveyed to him as referable to the share of the alienating coparcener. Added to this

phenomenon sanctioned by the law, the survivorship stands suspended until after the lifetime of a widow who succeeds to her husband on his death

in relation to the joint family properties. Having regard to this position, therefore, we are of the view that the interest of a widow under Sec. 3(2) of

Act XVIII of 1937, is property and the act of her becoming entitled to that interest by operation of that statutory position is in effect acquisition by

or accrual to her of a right within the meaning of S. 6of the General Clauses Act. On that view we think that the right acquired by the widow to her

husband''s interest In the joint family properties would stand entirely unaffected by end survive the repeal of Act XVIII of 1937. The conclusion we

have arrived at it is in accord with and has the support of authority.

The position of a widow in a joint Hindu family governed by the Mitakshara school of Hindu law prior to April 1937 was unenviable. She had

but only a right to maintenance and was not certainly a coparcener. But the Legislatures mindful of her welfare and with a view to improve her

status enacted the Hindu Women''s Rights to Property Act, 1937 (Act XVIII of 1937). The object as mentioned in the preamble to the Act was to

give better rights to women in respect of property. S 3 which overrides any rule of Hindu law or custom to the contrary provides for devolution of

property in a joint Hindu family. Sub-sec (2) is a follows :--

(2) When a Hindu governed by any school of Hindu law other than the Dayabagba school or by customary law dies having at the time of his death

an interest in a Hindu joint family property, this widow shall, subject to the provisions of Sub-Sec (3), have in the property the same interest as he

himself had.

But the following Sub-Section limits the scope of her rights and clarifies that the interest devolving on a Hindu widow under Sub-Sec. (2) shall

be the limited interest known as a Hindu woman''s estate but with the difference that she shall, however have the same right of claiming partition as

a male owner. The effect of the Act was, therefore, to give a Hindu widow better right in respect of property, to wit, she will have, on the death of

her husband, who was a coparcener, the same interest in the joint family property as her deceased husband had, subject of course to the limitation

that interest so devolving on her shall be a Hindu woman''s estate and is known to the Hindu law with the right superadded of claiming partition as

a male owner. The Act does not make her a coparcener, and the basis of her right is not rightly birth but the statute. A Full Bench of this court in

Manicka Gounder v. Arunachala Gounder (1964) 2 M.L.J. 519 on a construction of S. 3(2) held that a Hindu widow after her husband''s death

does not by virtue of that Section, become a coparcener with the surviving male members that it was so because the essential characteristics of a

coparcener being that the coparcener possesses a right to the family property by birth and that though she is not a coparcener, since what is vested

in her by the statute is the interest of her deceased husband in the coparcenary property, subject to the statutory limitations, she is given all the

rights that pertain to a Hindu women''s estate, besides a right to ask for partition; and that so long as she chooses to remain in the family, her

interest in the joint family property is bound to be naturally a fluctuating one in accordance with births and deaths of coparceners in the family. The

right conferred by the Act accrues to her, as was held by Ramalinga Ramalingam Pillai and Others Vs. Ramalakshmi Ammal and Others, on her

husband''s death and having regard to the fact that what accrues to her is the same interest as her husband himself had subject to qualifications,

though she does not choose to file a suit for partition immediately on such accrual, the right to which she became entitled on her husband''s death

could not in any way be adversely affected except on justifiable grounds; the can, therefore, question the alienation of any such property be the

surviving coparcener. Dealing with the scope of Sec. 3 (2)and (3) of Act XVIII of 1937, the Bombay High Court in Dagadu Balu Vs. Namdeo

Rakhmaji and Others, observed :--

Therefore, in our opinion, on a plain reading of the two material Sub-Sections, it is clear that a Hindu widow on her husband''s death in a joint

Hindu family gets the same interest that her husband had with the limitation that the interest is not absolute but is limited and limited in the manner

known to Hindu law, viz, Hindu widow''s estate. It is clear that the legislature did not wish to confer upon the Hindu widow the same right that her

husband as a coparcener had ""quae"" the joint family property.

In the same case, the court pointed out.--

The incidents of a Hindu woman''s estate are well known and well settled. She cannot alienate her property except for legal necessity, but she has

the right to alienate the property even without legal necessity during her lifetime. In other words, she can alienate her own life-interest and the

alienee can enjoy the property during her life in the same manner as the widow herself would have enjoyed it.

Parappa v. Nagamma (1954) 1 M.L.J. 250, 255 decided by a Full Bench of this court construed S. 3(2) and laid down:--

The Act therefore has conferred a new light on the window of a deceased coparcener in modification of the pre-existing law Sec. 3(2) of the Act

does not bring about a severance of interest of the deceased coparcener. Certainly the widow is not raised to the status of a coparcener though

she continues to be a member of the joint Hindu family as she was before the Act. The joint family would continue as before subject only to her

statutory right. The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced namely

that she continued the legal persona of the husband till partition. From the standpoint of the other male members of the joint family, the right to

survivorship was suspended. The legal effect of the fiction was that the right of the other members of the joint family would be worked out on the

basis that the husband died on the date when the widow passed away. She would have during her lifetime all the powers which her husband had

save that her interest was limited to a widow''s interest. She could alienate her widow''s interest in her husband''s share; she could even convey her

absolute interest in the same for necessity or other binding purposes. She could ask for partition and separate possession of her husband''s share.

That the right acquired by a Hindu widow under S. 3(2) of the Hindu Women''s Rights to Property Act is liable to be attached and sold in

execution of a decree obtained against her, even though the amplitude of the estate is limited was accepted by Thimmi Amma v. Venkatarama

Chetti (1960) 2 M.L.J. 135. In view of these decisions and on our own view of the scope of S. 3(2), we are unable to accept the contention for

the appellants that all that had vested in a Hindu widow was but a right to ask for partition as her husband could have. Clearly what the statute has

given her is property in its factual and legal sense though with limitation and the right has for first time accrued to her on her husband''s death. That

being the case, the effect of the repeal of the S. 3(2) is not to affect her, and her rights under S. 3(2) is saved by Sec. 6 of the General Clauses

Act.

That point was specifically raised before Rajagopala Aiyangar J in Kuppathammal Vs. Sakthi alias Thayammal and Another, , and the learned

Judge held that the vesting under S. 3(2) was absolute and not subject to conditions, and that the repeal of the Hindu Women''s Rights to Property

Act did not any way impair the rights conferred on the windows by the earlier enactment even though the widows had Dot asserted their rights by

claiming a share. In Sankara Rao v. Rajyalakshmamma (1960) 2 Audh. W.R. 442, the High Court of Andhra Pradesh relied upon Kuppathammal

Vs. Sakthi alias Thayammal and Another, and concurred with the view that the mere fact that the widow did not claim partition did not mean that

she was not in possession of her husband''s interest along with the surviving coparceners and that by a claim for partition she merely worked out

that right. The High Court of Andhra Pradesh affirmed this view in Ranganayakamma v. Rajarajeswaramma (1964) 1 An. W.R. 231. As we said,

we hold, therefore, that what vested for the first time in the widow under See. 3(2) of Act XVIII of 1937 is property in the coparcenary though the

extent and quality of her right is limited and her right having accrued to her under the statute, notwithstanding the repeal of the Hindu Women''s

Rights to Property Act 1937, it is saved by Sec. 6 of the General Clauses Act.

We pass on to a consideration of the second question relating to the applicability of Sec. 14(1) of the Hindu Succession Act, 1956 to her right.

Under that provision, any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, would be held

by her as full owner thereof and not as a limited owner. We have already held that the right under S. 3(2) vested in the widow for the first time and

the right so vested is property with certain limitations and that, therefore, the proprietary right by reason of that Sub-Section had been acquired by

or has accrued to the widow. The question then is whether the right acquired by her can be described as ""any property possessed by her"". We are

clearly of opinion that it is such property. As already pointed out, she has a limited interest equivalent to a Hindu woman''s estate with a right to

partition. She has a disposing power over the interest vested in her, for, she can alienate it absolutely for necessity or benefit or absolutely for her

lifetime even without necessity. We think that such an interest is property and is possessed by a Hindu female. Under S. 14(1) of the Hindu

Succession Act, 1956 her limited interest becomes enlarged into an absolute one. That is the view accepted by Sankara Rao v. Rajalakshmamma

1960-2-An. W.R. 442. The Supreme Court in S.S. Munna Lal Vs. S.S. Rajkumar and Others, , has held that by S. 14(1) of the Hindu

Succession Act the interest of a Hindu female which under the Sastrio Hindu law would have been regarded as a limited interest is converted into

an absolute estate, especially having regard to the wide content given to the expression ''property'' by the Explanation to See. 14(1). The principle

of this decision should apply to the right acquired by or accrued to a Hindu widow under Sec. 3(2) of the Hindu women''s Rights to Property Act

1937. Recently in Indubai Vs. Vyankati Vithoba Sawadba and Others, the Bombay High Court has expressed the view that S. 14 of the Hindu

Succession Act confers on the widow a right in property capable of enjoyment whenever she wills so to do and that since she has now full

ownership over the interest in the joint family property that she got on her husband''s death without even claiming partition, she must be regarded as

being in possession of the property; she need not reduce her share to possession by actual partition; and that by reason of Sec. 14, what was

before a limited estate, became transformed into a full estate with all its incidents including that it passes to her heirs in accordance with S. 15 of the

Act. With respect, we share this view. The result is App. No. 155 of 1961 fails and is dismissed with costs. Appn. No. 171 of 1961 was an

appeal filed by the second defendant but has abated on account of his death. This appeal is also dismissed but with no costs.