Govindammal and Others vs Ramaswami Pillai Alias Raja Pillai and Others

Veeraswami, J.—The Plaintiffs, who are the Appellants in Appeal 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 provisions of the Hindu Women''s Bights to Property Act, 1937, that the repeal of this Act by the Hindu Succession Act, 1956 did not affect her interest and that by reason of Section 14(1) of the later 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:

(i) the effect of the appeal on the third defen- dant''s interest under the earlier Act; and

(ii) the applicability to it of Section 14(1) of the later Act.

The first Plaintiff is the widow of one Shanmugha-Sundara Pillai who died on June 12, 1958 leaving her, a son and a daughter, both minors, who are Plaintiffs 2 and 3 respectively. The first Defendant is the brother of Shanmugha Sundara Pillai and their mother is the third Defendant. Their father Narayana-swami Pillai died in August 1950, leaving his widow, the third Defendant and his divided brother, the second Defendant. On September 8, 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 she acquired under Act XVIII of 1937, was not 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 u/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 to the appeal 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 Section 6 of the General Clauses Act, 1897. On the other hand, the 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 proprietory 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 coparcenary property as a whole and no member of the coparcenary, so long as the jointness continues, can claim any defined share or interest as being his crystallised 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 time is but to ask for a partition and separate posssession of his share. On the death of a coparcener, 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. In 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 proprietory 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 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 u/s 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 Section 6 of 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 and survive the repeal of Act XVIII of 1937. The conclusion we have arrived at is in accord with and has the support of authority.

The Petitioner a widow in a joint Hindu family governed by the Mitakshara school of Hindu law prior to April 1037, was unenviable. She had but only a right to maintenance and was not certainly a coparcener. But the Legislature, mindful of her welfare and with a view to improve her status enacted the Hindu Women''s Rights to Property 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. Section 3 which overrides any rule of Hindu law or custom to the contrary provides for devolution of property in a joint Hindu family. Sub-section (2) is as follows:

(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag 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-section (3), have in the property the same interest as he himself had.

But the following Sub-section limits the scope of her rights clarifies that the interest devolving on a Hindu widow under Sub-section (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 a 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 the interest so devolving on her shall be a Hindu woman''s estate as 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 right by birth but by the statute. A Full Bench of this Court in Manicka v. Aruna-chala ILR (1964) Mad. 598 (F.B.) on a construction of Section 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 characteristic 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 co-parcenery property, subject to the statutory limitations; she is given all the rights that pertain to a Hindu woman''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 Ramalingam Pillai v. Rama-lakshmi Ammal (1957) 2 M.L.J. 332 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; she can, therefore, question the alienation of any such property by the surviving coparcener. Dealing with the scope of Section 3(2) and (3) of Act XVIII of 1937, the Bombay High Court in Dagadu Balu v. Namdee Rakhmaji AIR 1955 Bom. 153, 154 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 ''qua'' the joint family property.

In the same case the Court pointed out at page 153:

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 (F.B.) decided by a Full Bench of this Court construed Section 3(2) and laid down:

The Act, therefore, has conferred a new right on the widow of a deceased coparcener in modification of the pre-existing law. Section 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 person 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; and 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 u/s 3(2) of the Hindu Women''s Right 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 Ammal v. Venkatarama Chetty (1960) 2 M.L.J. 135. In view of these decisions and on our own view of the scope of Section 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 limitations and the right has for the first time accrued to her on her husband''s death. That being the case, the effect of the repeal of Section 3(2) is not to affect her, and her rights u/s 3(2) is saved by Section 6 of the General Clauses Act.

That point was specifically raised before RAJA-GOPALA AYYANGAR, J., in Kuppathammal Vs. Sakthi alias Thayammal and Another, and the learned Judge held that the vesting u/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 in any way impair the rights conferred on the widow by the earlier enactment even though the widow had not asserted her rights by claiming a share. In Sankara Rao v. Rajyalakshmamma (1960) 2 An. 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 held, therefore. that what vested for the first time, in the widow u/s 3(2) of Act XVIII of 1937, is property in the coparcenery 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 Section 6 of the General Clauses Act.

We pass on to a consideration of the second question relating to the applicability of Section 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 u/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 proprietory right by reason of that Sub-section has 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 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. u/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. Rajyalakshmamma (1960 2 An. W.R. 442. The Supreme Court in Munnalal v. Rajkumar AIR 1962 S.C. 1492 has held that by Section 14(1) of the Hindu Succession Act the interest of a Hindu female which under the Sastraic. 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 Section 14(1). The principle of this decision should apply to the right acquired by or accrued to a Hindu widow u/s 3(2) of the Hindu Women''s Rights to Property Act, 1937. Recently in Indubai v. Vyankati AIR 1956 Bom. 64 the Bombay High Court has expressed the view that Section 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 Section 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 Section 15 of the Act. With respect, we share this view.

The result is Appeal No. 155 of 1961, fails and is dismissed with costs.

Appeal 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.