Permatha (died) and Another vs Ramaswami and Others

K. Veeraswami, C.J.—appeal arises under the Letters Patent from the judgment of Alagiriswami, J., who, concurring with the first appellate

Court, dismissed the second appeal by the appellant who was the plaintiff. Her husband died intestate on 14th July, 1952. She was the second

wife and had two sons by him. Years back, as a result of misunderstanding between her and her husband, the appellant instituted maintenance

proceedings under the Code of Criminal Procedure and obtained a maintenance order. A suit brought by the husband to have that order cancelled,

ended in a compromise which resulted in what we regard as a family settlement dated 24th December, 1930. The substance of this document was

that the husband and his son by his first wife should take certain properties and live as joint Hindu family and the second wife and the two stons by

her represented by their mother as guardian should take certain properties mentioned in the Schedule to the document and live as a separate

family. Basing her claim on the Hindu Women''s Right to Property Act, 1937, she brought the suit out Of which the second appeal arose for

partition and separate possession of the share of her husband in the joint family consisting of himself and his son by the first wife. The trial Court

granted a preliminary decree which was, however, reversed in appeal with which Alagiriswami, J., agreed.

The question for decision is somewhat not free from doubt but on the Whole we have come to the conclusion that the present appeal should be

dismissed. Counsel for the appellant presses upon us a literal reading of Sub-section (2) of Section 3 of the Act. He says that the appellant''s

husband having died intestate and as a member of a Hindu joint family, she would be entitled, as his widow, to the same share as her husband had.

On the first bush the argument appeared to be attractive and even received support from Kallakuri Ranganayakamma and Others Vs. Kallakuri

Raja Rajeswaramma, . Chandra Reddy ,C. J., speaking for the Division Bench, referred to the observations of the Supreme Court in Ardeshir H.

Bhiwandiwala Vs. The State of Bombay, , ""general words of a release do not mean release of rights other than those then put up and have to be

limited to the circumstances which were in the contemplation of the parties when it was executed"" and was of the view that if, on the date of release

of maintenance right, the right under the provisions of the Hindu Women''s Rights to Property Act was not in contemplation, the earlier release

would not be a bar to a claim under the Act. No exception can be taken, as we consider, to that approach.

But there are two reasons which weigh with us in not accepting the appellant''s contention. What has happened in this case, on facts is this. The

family settlement resulted in a division not only of the joint family but also of the joint family properties. The joint family originally consisted of the

husband, his son by the first wife, the second wife and his two sons by her. There was a separation by the document, the husband and his son by

the first wife remaining as one unit 01 the joint Hindu family with certain properties allotted to the unit and the second wife and her two sons by

him, as another unit of the joint family with certain other properties allotted to the second unit with a provision that they should live separatively.

This Court has held that a widow, though not a coparcener, is a member of a Hindu joint family. But, in view of the family settlement just now

referred to, we are inclined to think that she could no longer, after that settlement, be regarded as a part of the joint family consisting of the

husband and his son by the first wife. In our view, Sub-section (2) of Section 3 of the Hindu Women''s Rights to Property Act, 1937, can be

applied only to an interest of her husband in the properties of a joint family of which the widow is a member. The whole intention of the document

was to bring a separation of not only of the joint family to be split up into two units, as we mentioned, but to have the joint family properties, which

originally belonged to the joint family, divided and allotted separately to each of the units. To such a case, we think that sub-section won (2) of

Section 3 cannot be applied.

The second ground is that, if the appellant by a literal reading and application of Sub-section (2) of Section 3 is allotted a share of her husband

in the Hindu joint family properties which belonged to the joint family consisting of the husband and his son by the first wife, the result would be to

leave the division of the original joint family properties and allotment to the second unit completely undisturbed : and deprive the son by the first

wife of the benefit of a share in the entirety of the properties belonging to the family, as it existed before 24th December, 1930, It seems to us that

that result was not under the contemplation of the Hindu Women''s Rights to Property Act, 1937. In fact, the second ground we have mentioned

derives validity from the first ground, namely, that the widow in order to enable her to claim her husband''s interest should continue to be a member

of such family-

Alagiriswami, J., no doubt, disposed of the appeal before him on a different ground. He says that the document dated 24th December, 1930

read as a whole disentitled the appellant to her claim. We agree with this aspect as well, more particularly because the document itself provides

that neither of the units of the joint family brought about by it would have any claim personally or with regard to the properties allotted to one or

other of the units. The first appellate Court has extracted the relevant passages from the document for this view and we hardly need to reiterate.

Though, therefore, we do not dissent from Kallakuri Ranganayakamma and Others Vs. Kallakuri Raja Rajeswaramma, , on the view we are

inclined to take of the effect of Sub-section (2) of Section 3 of the Act and also the terms of the family settlement, the appeal, in our opinion,

should fail. We would like to point out that in Kallakuri Ranganayakamma and Others Vs. Kallakuri Raja Rajeswaramma, , there was no splitting

up of the joint family and the widow there continued to be a member of the joint family at the time she made the claim u/s 3 of the Hindu Women''s

Rights to Property Act 1937.

The appeal is dismissed. No costs.