Mothi Mondi Ambalam vs Alagammal

Ramaprasada Rao, J.—Mothimondi Ambalam is a rich Ambalagar in Madurai Dt. He married twice, one of the wives being Alagammal,

and the other being Murugayee. The marriage between Mothimondi Ambalam and Alagammal is not in dispute. Alagammal has two children out of

the wedlock, one being a son Mothirajan, the plaintiff in O.S. No. 273 of 1966, and another, a daughter Karuppayee, being the 7th defendant in

the same suit. Though the marital life was pleasant for some time, Alagammal''s case is that after her husband took a fancy to one Pandiammal a

teacher employed in the local elementary school at Mathoor, he was not treating Alagammal properly and that there were misunderstandings

between herself and her husband Mothimondi Ambalam. As there was no possibility petition reconciliation Alagammal had to file a of a under S.

488, Crl. P.C. in the Additional First Class Magistrate court, Madurai, for the grant of Independent maintenance to her and to her children. She

succeeded therein. The husband took up the position that though Alagammal was his lawfully wedded wife and was entitled normally to

maintenance, the marriage was dissolved in a caste Panchayat on 7th November 1965, as evidenced by Ex. B-10 and that therefore she was not

entitled to such maintenance. The learned Additional First Class Magistrate discountenanced the plea and granted maintenance to Alagammal and

her son. Whilst this was the position, the wife Alagammal, in order to obtain a more comprehensive relief, filed O.S. 233 of 1967 on the file of the

Sub Court, Madurai, for her maintenance at the rate of Rs. 250 per month towards past maintenance and of Rs. 400 per month towards future

maintenance. She Set out in detail as to how misunderstandings arose between herself and her husband and how she was subjected to physical and

legal cruelly and how, in the circumstances, she was entitled to separate maintenance under the Hindu Adoptions and Maintenance Act.

The husband again came forward with the same defence that the marriage was dissolved in a caste panchayat and that, therefore, the suit was

not maintainable.

Probably, Alagammal was perforce compelled to institute this independent action for maintenance, as, by then, Mothimondi Ambalam filed O.S.

87 of 1967, seeking for an order to set aside the order of the Additional First Class Magistrate granting maintenance to the child of Alagammal, on

the ground that the marriage was dissolved under Ex. B-10, in a caste panchayat. He also sought for a declaration that Alagammal was not his

legally wedded wife. We shall presently refer to the pleadings in O.S. 273 of 1966, which was a suit for partition filed by Mothirajan, as son of

Mothimondi Ambalam, asking for separate possession of his one-third share in the coparcenary in which Mothirajan claimed that he was a

member along with his father Mothimondi Ambalam and step-brother, minor Neethipathi.

In so far as the two suits, O.S. 87 and 233 of 1967 are concerned, the main, and probably the only, issue is, whether there was a dissolution of

the marriage as claimed by the husband Mothimondi Ambalam and whether it is evidenced by Ex. B-10, which is said to be a deed of divorce

simultaneously executed in the customary manner in the presence of panchayatdars, between Alagammal, the wife, and Mothimondi, the husband.

If it is found that Ex. B-10 is a genuine instrument, and if it is also found that the panchayatdars who, according to the husband, took part in the

caste panchayat to effectuate a divorce and a snapping of the marital the as pleaded by the husband, then, Alagammal would not be entitled to any

maintenance. If it is otherwise, she would be entitled to such maintenance, as, in the circumstances, she would be entitled to, which depends upon

the opulence of the husband Mothimondi.

We shall hereafter refer to Alagammal as the plaintiff and Mothimondi Ambalam as the defendant in so far as these two suits are concerned.

The learned trial Judge dismissed O.S. 27 of 1967 and negatived the request of the defendant for a declaration that there was no lawful

marriage as between himself and the plaintiff. In a common judgment the learned trial Judge decreed the suit O.S. 233 of 1967 and after the

enquiry granted a sum of Rs. 75 as future maintenance to the plaintiff and of Rs. 60 towards past maintenance from 1st December 1963 to 30th

November 1966. It is as against this, the defendant has come up in appeal. A.S. 812 of 1970 is against the judgment and decree of the court

below in O.S. 87 of 1967 and A.S. 215 of 1969 is against the judgment and decree of the court below in O.S. 233 of 1967.

As we said, notwithstanding the many issues raised by the court below on the pleadings, the only relevant point for consideration is, in the

absence of any dispute by the defendant during the trial about the plaintiff''s right to claim maintenance, whether there was a dissolution of the

marriage as between the plaintiff and the defendant in a caste panchayat on 7th November 1965.

The defendant examined as many as ten witnesses, amongst whom D.W. 3 is one Karuppiah Chettiar and D.W. 4 is Vathalaigona Rowther.

The community to which the plaintiff and the defendant belong appeals to be a very respectable and influential community, and it is not in dispute

that both the plaintiff and the defendant belonged to very rich and opulent families in the district. The defendant, by himself was a rich ambalagar. It

is, therefore, natural to expect that the witnesses who would be present at a caste panchayat to effectuate a snapping of the marital the between

two respectable parties to a marriage would be equally respectable people from the community. But, west rangely find in the instant case that two

utter strangers to the community, who could not have participated in such a caste panchayat, also speak to such a dissolution of the marital he in

such a caste panchayat supposed to have been held on 7th November 1965.

x x x x

The discussion on facts is omitted: Ed.

All these aspects were noticed by the trial court, and the learned Subordinate Judge came to the conclusion that he could not safely rely upon the

testimony of those witnesses to support case of a divorce or a dissolution of the marriage as between plaintiff and the defendant.

As regards Ex. B 10, this was tested twice in courts of law, once in the Magistrate court and for a second time, before the trial judge. On both

the occasions, the defendant failed to establish that Ex. B-10, could be an instrument of divorce, as it claims or purports to be, and is one which

should be deemed to have been executed between the plaintiff and the defendant.

X X X X

The plaintiff totally denied that there was any such caste panchayat and stated that she was not a party to Ex. B-10 at all.

The emptiness of Ex. B-10 is also established intrinsically by one of the recitals in it. It is not disputed that when marriages are dissolved in

accordance with caste custom of the community, compensation by name ''theerwa'' is paid by the husband to the other spouse, presumably to

secure such a snapping of the marital the and to dissolve the relationship of husband and wife once and for all. In such circumstances, it is equally

natural to expect that rich families, like of which we are concerned with in the instant appeals, would make a sufficient provision for ''theerwa'' to

the out going spouse. In this case, it is claimed that a magificent sum of Rs. 850 was paid by the rich Ambalagar to his spouse who was also

equally rich and belonged to a respectable family as well. This significant feature exposes to the hilt that Ex. B-10 could not have been the

document which was genuinely executed before a caste Panchayat and that it was executed as between the plaintiff and the defendant, the former

being a willing party thereto.

We find therefore, that the oral evidence let in, in support of the so-called dissolution of the marriage in a caste panchayat held on 7th

November 1965, is hopelessly contradictory and unbelievable. We also find that Ex. B-10 which is the sheet-anchor on which the claim for

divorce is made by the defendant is equally an unreliable document. The court below rightly disbelieved the defence witnesses, who were

examined to prove a caste panchayat and characterised Ex. B-10 as a fabricated instrument so as to defeat the right of maintenance of the plaintiff.

We accept, therefore, the finding of the court below that no divorce was effected of the marriage between plaintiff and the defendant as claimed

and that the plaintiff is entitled to maintenance.

As regards the quantum of maintenance, we are unable to interfere, although learned counsel for the appellant would hesitantly urge for a

modification of the quantum. Having regard to the evidence and the possession of the defendant as ambalagar of the district, the court below

decreed for a sum of Rs. 60 per month towards past maintenance from 1st December 1963 to 30th November 1966 and also for a sum of Rs. 75

per month for future maintenance. No material has been placed before us to hold that this sum is in any way excessive.

For the above reasons, we are unable to disturb the decree and judgment of the court below in O.S. 87 and 233 of 1967; and, accordingly,

we dimiss A.S. 215 of 1969 and 812 of 1970. There will be no order as to costs in either.

App. No. 216 or 1969, Memo of cross objections and C.M.P. 11349 of 1969-In the course of our judgment above, we referred to a

partition action filed by minor Mothirjan, son of Mothimondi Ambalam, represented by mother and next friend Alagammal, for separate possession

of his share in the joint family properties, of which Mothimondi Ambalam is the father-manager. He has impleaded the father as the first defendant,

the second wife of Mothimondi Ambalam, Murugayee, as the second defendant, and him own sister Karuppayee as the 7th defendant. Defendants

3, 4, 5 and 6 are the children of Mothimondi Ambalam through his second wife, Murugayee, the first three being girls and the sixth defendant being

a boy. It is not, therefore, disputed that whatever joint family properties are available for division in the coparcenary, they should be divided into

three shares, and the first defendant, as father, and the plaintiff and the sixth defendant, as sons, be provided each a third share therein.

The second defendant independently filed a written statement stating that she had a son by name Ramdoss, who died in the year 1958, after

the Hindu Succession Act XXX of 1956 came into force, that, as that fact was not disputed, Ramdoss would be entitled to a share under the 1956

Act, that his share would devolve after his death on her. As mother and as a heir under S.6of the said Act, and that, therefore, the estate should be

divided into four equal shares and she would be entitled to a one-fourth share therein.

The first defendant could not negative the right of the plaintiff for partition as claimed; but he would only set out the defence that it was not in

the interests of the minor to seek for a partition at that stage. He would, however, claim that certain items of properties set out in the schedule to

the plaint are not joint family properties and they are to be excluded from the hotchpot before a reckoning of the coparcenary share is made and

the resultant physical division effected thereafter. It was in those circumstances, O.S. 273 of 1966 was taken up for trial.

As we said, there is no dispute that the plaintiff''s right to sue for partition and obtain his separate share in the joint family properties. The first

question, however, is what are the joint family properties in which the plaintiff, the first defendant and the sixth defendant have a share each.

The contention of Mr. Sivamani, appearing for the plaintiff, is that the finding of the court below that Ramdoss, son of the second defendant

died in the year 1958 after the Hindu Succession Act came into force is factually incorrect. For this purpose, the plaintiff filed C.M.P. 11349 of

1969, enclosing an extract from the register of deaths in the local area concerned, showing that Ramdoss, son, of the first defendant and the

second defendant, died on 19th August 1955, which was prior to the ushering in of Act XXX of 1956. On this ground, it is contended that the

lower court was wrong in dividing the joint family properties into four shares and in allotting a fourth share therein to the second defendant on the

foot that she survived as a heir of her son, Ramdoss, and also on the assumption that the said Ramdoss died after the coming into force of the

Hindu Succession Act. There was no serious objection to the acceptance of the additional evidence sought to be let in C.M.P. 11349 of 1969.

The same is received in evidence, and we have marked it, by consent, as Ex.C-1. From the recitals in Ex.C-1, which proves by itself, we are

unable to accept the finding of the court below that Ramdoss, son of Murugayee, died after the Hindu Succession Act came into force. If,

therefore, the fact is that Ramdoss died prior to the ushering in of Act XXX of 1956, then, the total number of shares who would be entitled to

share in the joint family properties are three, they being the plaintiff, the first defendant and the sixth defendant only.

The next question is as to what are the joint family properties? The lower court, after an exhaustive consideration of the materials placed before

it, reckoned such joint family properties and ultimately parsed a preliminary decree, the correctness of which we shall presently come to. On the

question as to what are the joint family properties, he found that all the item of properties, excepting the items covered by Exs. B-9, B-12, B-13

and B-14, are joint family properties. In respect of this, the plaintiff has filed a memorandum of cross objections; and the assertion is that those

properties also should be brought to the hotchpot for purposes of division.

X X X X

[The finding of the lower court that the items covered by Exs. B-9, B-12, B-13 and B-14 ought not to be treated as joint family properties,

affirmed ; �Ed.]

The other items of properties which are also called in question in the sense that they are to be brought to the common pool for purposes of

division, are item 38 (part) and item 50 of the schedule to the plaint. In the course of trial it was brought out that item 50 consists of a ''mantapam''

in which nearly about 1000 people are fed during the chitra poornami festival of Lord Alagar and that the Mandagapadi was performed from out

of the income of item 38 (part). The question arises whether such a customary treatment of the properties for a considerable length of time prior to

the date of the action for partition could be accepted as evidence of oral dedication of the same for charitable purposes. It is by now well

established that a dedication to public charities may be evidenced by an instrument or by acceptable evidence and consistent data in proof of such

a grant. In the absence of a written instrument evidencing the dedication, strict proof by way of custom and usage, of such dedication for charitable

purposes is necessary. In the instant case, the trial court found that there was such an abundance of materials before it to infer that there was such a

dedication for charitable purposes, of items 38 and 50, the former to provide for the mandagapadi to be performed at the mantapam in the letter

item, wherein about 1000 people are fed during the chitra poornemi festival when the deity Lord Alagar is brought out in procession, being used as

such. P.W. 2, the mother of the plaintiff, admitted that there was such a feeding at the mantapam from out of the income of item 38. In the absence

of any contrary evidence compelling us to hold that items 38 and 50 ought to be brought to the hotchpot for purpose of division as between the

coparceners, we are unable to disturb the finding of the trial court on this aspect as well.

C.M.P. 11349 of 1969 is allowed. The cross objections are partly allowed in regard to the quantum of the sharers, viz., the plaintiff, the first

defendant and the sixth defendant, as being entitled to one third each in the joint family properties. The claim for inclusion of the several items

mentioned in the memorandum of cross objections is dismissed; no costs.

The next claim of the learned counsel for the appellant is that the lower court was wrong in having disallowed a lawful debt of Rs. 12,000

which the family is liable to pay.

X X X X

[Discussion of facts omitted: Ed]

We find that the existence of the debt itself has not been proved and therefore it follows that the claim made by the first defendant that a sum of Rs.

12,000 should be provided from out of the funds of the joint family to pay off this debt, is unsustainable and has to be characterised as a tall claim.

[para 27 omitted 1 Ed.]

To appreciate the last and the third contention of Mr. T.R. Ramachandran, it is necessary to state a few facts. The first defendant, Mothimondi

Ambalam, secured many of the suit properties in a partition between himself and his three step-brothers. It is not in dispute that the mother of the

first defendant was alive on the date of the said partition. Ex. A-4 dated 12th November 1952 is the partition deed. The father of the first

defendant had two wives, one of whom was Parvathi and the other, Ayyammal. Parvathi was the mother of the first defendant. Through

Ayyammal, the father of the first defendant had three sons. It is admitted that no share was given either to Parvathi or Ayyammal at the time of the

partition. The father was not alive on the date of the partition, he having died on 5th October 1948. The father had a one fifth share in the joint

family properties. Ordinarily, each of his widows would be entitled to a one-tenth share in the estate. But the four sons divided the estate equally

amongst themselves. It, therefore, follows that when the first defendant got his share in the coparcenary properties, his mother Parvathi had a one-

tenth share therein. The question for consideration is as to what becomes of this one tenth share of Parvathi on her death after the pasting of the

Hindu Succession Act, 1956.

Parvathi was a post-1937 widow, in the sense she became a widow in 1948 after the passing of Act 18 of 1937 (Hindu Women''s Right to

Property Act, 1937). Under S. 3(2) of that Act, the widow took an interest which was the same as her husband''s at his death. The Supreme

Court characterised this interest as one not arising by inheritance nor by survivorship, but by statutory substitution� Satrughan Isser Vs. Smt.

Subujpari and Others, . In fact, our court, in Govindammal v. Ramaswami Pillai 81 L.W. 655 observed as follows:

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 the

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

male owner. The Act does not make her a co-parcener, and the has is of her right is not right by birth but by the statute.

Such an interest which a Hindu widow look in the manner as stated above, is certainly ''property'' within the meaning of S.3(2) of the 1937 Act as

well as under S.14(1) of Act 30 of 1956. It is apposite to quote one of the passages from Satrughan Isser Vs. Smt. Subujpari and Others, At page

274, the Supreme Court said:

By the Act, certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act With the same interest which

her husband bad at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary and between the

surviving coparceners of bar husband and the widow so introduced, there arises community of interest and unity of possession. But the widow

does not on that account become a coparcener. Though invested with the same interest which her husband bad in the property she does net

acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her

interest in the coparcenary property in place of her husband, the right which the other coparceners bed under the Hindu Law of the Mitakshara

school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is

no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property Potti Lakshmi Perumallu

Vs. Potti Krishnavenamma, . The interest acquired by her under S. 3 (2) is subject to the restrictions on alienation which are inherent in her estate.

She has still power to make her interest definitely making a demand for partition, as a male owner may. If the widow after being introduced into

family to which her husband belonged does not seek partition, on the termination of bet estate, her interest will merge into the coparcenary

property. But, if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary

property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition or her estate

is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband. It is true that a

widow obtaining an interest in coparcenary property by S.3(2) does not inherit that interest, but, once her interest has ceased to have the character

of undivided interest In the property it will upon termination of her estate devolve upon her husband''s heirs. To assume as has been done in some

decided cases that the right of the coparceners to take her interest on determination of the widow''s interest survives even after the interest has

become definite, because of a claim for partition, is, to denude the right to claim partition of all reality.

New naunces have been struck by the passing of the 1956 Act, over the right of a Hindu widow, which before the 17th June, 1936, was only a

right to seek for partition of her husband''s share in the joint family property, though she had a limited interest in it. A post-1937 widow, by reason

of her husband being fictionally substituted as a coparcener in the family, though in the general and accepted sense of the personal law of Hindus

she was not such a coparcener though she secured a statutory right. The content of the statutory right by substitution enabled her to crystallize her

share which represented her husband''s share and ask for a partition of the coparcenary property, but with the ancillary obligation to enjoy the

same only for life. If such a widow survived after the passing of the 1956 Act, her limited right which is ''property'' so secured by her in a partition,

blossomed into an absolute right with powers of alienation thereon. But the tricklish question is as to what is to happen to a post�1937 widow

who survived after the passing of the Hindu Succession Act 1956, (17th June, 1956), if she had not sought for a partition so as to crystallize and

secure her rights in the coparcenary Does she lose the benefit under S. 14(1) of the Hindu Succession Act, and should her right as substituted

coparcener perish with her death and should the interest of the other coparceners enlarge in consequence?

In our view, this is not the intention of S. 14(1) of the Hindu Succession Act, read with Ss. 15and 16therein. The mere absence of demand for

partition or the fact that such a widow secured her interest in a partition prior to 1956, would not make any difference, in so far as the nature and

value of her vested right by statutory substitution is concerned, which right was available to her under S.3(2) of the 1937 Act. Once it is conceded

that the interest of a post-1937 widow, prior to the Hindu Succession Act, in the coparcenary is a vested statutory right, then, she is deemed, as

any rate, to be in constructive, though not, in physical possession of her share, which is ''property'' in the eye of law, on the date when the Hindu

Succession Act came into force.

Such ''property'' is owned by her, but may not be possessed by her. As possession always follows title, the fact that she did not utilise her

statutory right by seeking a division by metes and bounds in a partition suit for the purpose is an irrelevant consideration.

In Mangal Singh v. Rattino AIR 1967 S.C. 1786 the Supreme Court observed�

It appears to us that the expression used in S. 14(1) of the Act was intended to cover cases of possession in law also, where lands may have

descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive

possession. On the language of S. 14(1)we hold that this provision will become applicable to any property which is owned by a female Hindu,

even though she is not in actual, physical or constructive possession of that property.

It is in this context that the rule of succession to property in the case of female Hindus contained in Ss. 15and 16of the Hindu Succession Act

looms large to give us a clue to the problem under consideration. After the passing of the Hindu Succession Act, a female owning property

becomes a fresh stock of descent, and her property devolves on the heirs as enumerated in S. 15. A partition or demand for partition in the

coparcenary by a post-1937 widow before 17th June 1956 is not necessary, as it would not be the sine quo non for enlarging her interest as

above into an absolute and free one, under S. 14(1) of the Act.

Our view is fortified by a judgment of the Supreme Court and the consistent view taken by this court as is seen hereafter. Natesan, J. in

Sukhram and Another Vs. Gauri Shankar and Another,

In that case, a widow of a joint family governed by the Mitakshara law of Benares School acquired her husband''s interest in the property on his

death in 1952. She did not exercise her right to partition, but subsequent to the coming in to force of the Hindu Succession Act, she sold away in

the family property, a half share in a house and shop. It was contended before the Supreme Court that the effect of the Act was not to destroy the

essential character of joint family property so as to invest the widow with power to alienate the interest that was vested in her without the assent of

the coparceners of her husband required under the Benares School of Hindu Law. The Supreme Court observed�A male member of a Hindu

family governed by the Benares school of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property

but a widow acquiring an interest in that property by virtue of the Hindu Succession Act is not subject to any such restrictions...On the, death of

her husband Kishan Devi became entitled to the same interest which Hukum Singh (husband) had in the joint family property. Of that interest, she

became full owner on 17th June 1956, and being full owner she was competent to sell that interest for her own purposes, without the consent of

the male coparceners of her husband.

Again the learned Judge, in the same judgment continued to say:�

While S. 14of the Hindu Succession Act makes the widow full owner of the estate, S. 15makes her afresh stock of descent in respect of the

property. The limited estate given to the female owner under Hindu Law is converted into an absolute estate with all powers of disposition and the

estate in her hands is heritable by her own heirs according to Ss. 15and 16of the Act. The rule of survivorship in favour of the other members of

the joint family as it is incompatible with the absolute heritable estate conferred on the widow. Above all the express provision S. 15which provides

against survivor ship has to be given effect to. The operation of S. 15has been facilitated by conferring absolute right on the widow making her the

full owner by S. 14(1), Necessarily on the coming into force of the Hindu Succession Act, notwithstanding the absence of any prior partition, the

husband''s estate which devolves on the widow and is in her possession gets crystallized.

We have already referred to the fact that possession by the widow of her interest is cumulatively referred to as her ''property'' and includes

constructive possession, and not necessarily actual possession.

Ramamurthi, J. while accepting the judgment of Natesan, J., in the above second appeal said in Solalappa Mudaliar v. Meenakshi Ammal

1970-I-M.L.J. 383.

The moment the Hindu Succession Act came into force, the widow became the absolute owner of her husband''s share whether or not she had

already made a demand for partition upon the other coparceners. For S. 14to come into operation, it is enough if she bad a mere right to take the

husband''s share. The right conferred upon her under the statute of 1937 is by its own force sufficient to make her the absolute owner, she need

not oven have made a demand for partition nor was it necessary for her to follow the demand for partition nor was it necessary for her to follow

the demand for partition by securing separate possession of her husband''s share. Mere ownership of her husband''s share is regarded as ''property

possessed by the widow'' at the time of the commencement of the Succession Act, Physical possession of her husband''s share is cot necessary.

Her right to obtain possession is sufficient within the meaning of S. 14.

N.S. Ramaswami, J. in T.K. Krishnamurthi Iyer v. Rajalakshmammal C.R.P. 2530 of 1972 had occasion to refer to the proposition dealt with by

us, and the learned Judge rightly quoted with approval a passage from Mullah on Hindu Law, 14th Edn. at page 901 :�

The right which was conferred on the widow by S.3of the Hindu Women''s Right to Property Act, 1937, as has already been pointed out, was not

a right which was inchoate or imperfect till a claim for partition was made. The undivided interest of the husband in the joint family property

devolved upon the widow immediately on the death of the husband and in the eye of law she would be in possession of her interest in that

property. The effect of the present section is to transform that statutory interest of the widow of which she was a limited owner into that of a full

owner. The fact that she had not sought any partition before the present Act came into force in 1956 makes no difference.

In the light of the consistent view expressed by our Court and the ratio decidendi in Sukhram v. Gaurt Shanker S.A. 796 of 1965, we have no

hesitation to hold that a prior partition by metes and bounds of the property by a Hindu post-1937 widow, or a demand for such partition, is not

essential to convert her quondam limited estate which she secured as a substituted coparcener under S.3(2) of the 1937 Act into an absolute estate

under S. 14(1) of the Hindu Succession Act, 1936. This appears to be automatic, and there is no condition imposed for such a blossoming up of

an absolute right in her favour.

In the light of the discussion as above, the one-tenth share to which Parvathi, mother of the first defendant was entitled, remained undisturbed

on her death after 1958. She owned this share, but also constructively possessed it. The son did not expressly provide her with a share. This

would not, however, divest her of a vested right. To fortify this proposition the first defendant examined D.W. 10 who was one of the attestors to

the partition deed Ex. A-4. According to D.W.10, both Ayyaumal and Parvathi Ammal represented that they would get their shares from their

sons and that was the main reason why no provision was made for the mothers at or about the time when the sons divided the properties. We do

not lee any particular reason to lightly discard this evidence let in only to further the case of a vested statutory right in favour of Parvathiammal.

There cannot be any estoppel against a statute or a statutory right earned in law.

This one-tenth share of Parvathi, as widow of her husband, was wrongly not included in the partition deed, Ex. A-4. According to us, there

was an implied understanding as between the mothers and the sons that the mothers'' share would be given to them as and when occasion arose. It

follows, therefore, that the properties which are partible amongst the plaintiff, the first defendant and the sixth defendant, are nine-tenths share in

the suit schedule properties, which are to be held as joint family properties. The one tenth share in the suit schedule properties, excepting of course,

the items disallowed by the court below, therefore, ought to be held to be the property of Parvathiammal, which devolved on the first defendant,

on her death, as her heir, under S. 15read with S. 16of the Hindu Succession Act.

In the face of the contentions raised by the father the first defendant, the action brought in the name of minor Mothirajan, the son, is definitely in

his interest.

In the result, therefore, the first defendant would be entitled to a one-tenth share in the properties reckoned by the court as joint family

properties, plus a one-third share of the remaining nine-tenths the plain Tiffin entitled to a one third of the nine-tenths, and the sixth defendant; to a

one-third share of the nine-tenths.

As against the marriage expenses provided for by the court below, there has not been any serious argument; and we are not disturbing this

portion of the judgment of the court below. Except for the modification of the judgment of the court below in regard to the quantum of shares, in

the manner stated above the findings of the court below are accepted, and the appeal is allowed in part. There will be no order as to costs.