Rathinasabapathy Pillai and Another vs Saraswathi Ammal

Mack, J.—I have had the advantage of perusing my learned brother''s judgment and merely wish to add a few words in further support of

our view that Act 18 of 1937 does not take away the old Hindu law right of maintenance a widow had against her husband''s joint family. There

are observations at page 711 of the 11th edition of Mayne on Hindu Law and Usage edited by Sri N. Chandrasekhara Ayyar, which suggest a

contrary view on the ground that Hindu law allowed widows maintenance only because of their exclusion from inheritance and from a share on

partition. At the time of this commentary, a widow was still excluded from succession to agricultural land and it was observed that, therefore, a

widow was entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. The Act has

since, by Madras Act 26 of 1947, been extended in favour of widows so as to include agricultural land. We are, with respect to the learned

commentator, unable to accept the view, which would appear to follow, that this legislation has extinguished the widow''s right to sue for

maintenance.

The adoption of such a view would mean that a Hindu widow would have no option at all but to sue for partition under these Acts. Many a widow

may not desire to pursue this remedy, which will not only have the disastrous effect of plunging the joint family into the travail of a partition suit, but

may also entail trouble, botheration and responsibility for herself in administering the share partitioned and allotted to her, which she can only enjoy

for her life and which she is expected to preserve for her husband''s reversioners. Widows may if they are legally well advised prefer a fixation of

reasonable maintenance which will free them from all such troublesome responsibility. We do not think that Act 18 of 1937 as amended by Act 26

of 1937. both of which were animated by liberal and generous motives towards widows, had any intention of compelling them to sue for partition

though they may desire only to have reasonable maintenance. It may in many cases be in the interests of both husband''s undivided estate and the

widow herself that she should be paid a reasonable and equitable maintenance, roughly equivalent to her husband''s share in the joint family income

for her life, than that the joint family agricultural holding should be carved up and fragmented. Fragmentation consequential on joint family partitions

without any economic safeguards of even minimum economic agricultural holdings has had disastrous effects on agrarian and rural economy. In my

view these Acts were intended to enlarge a widow''s rights and not to detract from or restrict her pre-existing rights under Hindu law. The result is

that, her right to sue only for maintenance if she so prefers without having recourse to the remedy of partition under Act 18 of 1937 is preserved

intact. The Act in my opinion, never intended to drive all widows aggrieved on the question of maintenance provision in an undivided joint family,

compulsorily to partition suits cutting up and splitting up agricultural holdings as their only legal remedy.

This legislation does not put the widow into the position of a coparcener, but gives her a statutory right to a partition if she so desires to exercise

it, without any interference to her alternative right to maintenance under Hindu law.

Krishnaswami Nayudu, J.

This appeal arises in a suit for partition by a Hindu widow under the Hindu Women''s Rights to Property Act 18 of 1937. One Kunchithapatham

Pillai died on 27-2-1947 possessed of movable & immovable properties including agricultural lands leaving behind him two sons by his deceased

first wife, defendants 1 and 2 who are the appellants and a second wife, the plaintiff, who is the sole respondent in this appeal.

The suit was one laid for partition and recovery of separate possession of 1/3 share in the properties of Kunchithapatham Pillai. The properties

consisted of agricultural lands and houses as also moveable including the amount due under two insurance policies taken out by the deceased. The

defendants contested the plaintiff''s right to partition in. certain items of Immovable properties, viz., items 12, 13, 17 and 22 of schedule A and item

4 o! plaint A-1 schedule and also in respect of certain moveables including the insurance amounts. As regards these items of Immovable properties

the defendants'' case was that they were the properties which were conveyed to them under a Deed of Settlement, dated 5-2-1942, Ex. B. 27, by

Kunchithapatham Pillai giving under the deed a life interest in favour of the defendants'' grandmother & the mother-in-law of Kunchithapatham, one

Ratnathachi & Ratnathachi having died on 26-7-42, the defendants claimed sole & exclusive rights to the properties contending that they were not

joint family properties, and could not therefore be the subject of any division. (After discussing the evidence His Lordship continued):--

On an examination of the evidence in this case and the circumstances together with the conduct of the parties both Before and after this

transaction, we have no reason to disagree with the conclusion of the learned Subordinate Judge that Ex. B. 27 (gift deed) was a nominal

transaction brought into existence at the instance of Ratnathachi but the properties were treated as joint family properties.

An alternative contention was urged In the lower court & before us that in any event Ex. B. 27 being only a gift of Joint family property would

not, be valid in law. The power of a Hindu father or other managing member to make a gift is limited, it must be within reasonable limits if it is to.

be of ancestral property and must be a gift ''inter vivos''. The purposes for which such a gift are permitted are those that are warranted by the

special texts. It is stated in Mayne''s Hindu law, 11th Edn. at page 452, that,

Apparently at one time, the father''s power over ancestral moveable property was larger than his power over ancestral Immovable property. But

by the time of Vignaneswara, it is evident that the distinction had practically disappeared. For, Vignaneswara himself does not claim for the father

an absolute power of disposing of moveables at his own pleasure, but only an ''independent power in the disposal of them for indispensable acts of

duty and for purposes prescribed by texts of law, as gifts through affection to the support of the family, relief from distress and so forth.

There does not seem to be really any distinction as between the moveables and the immovables in so far as the father''s power to make a gift is

concerned. The gifts could be only through affection with reasonable limits. Gifts to brides on Occasion of marriage as also gift by the father to his

daughter on the occasion of the marriage of a small portion of ancestral Immovable property have been held to be valid. Whatever the father is

permitted in discharge of his indispensable duties in satisfaction of his moral obligation cast upon him by the texts, must be within reasonable limits

and must be a small portion of the family property. Therefore, there can be no indiscriminate gifting away of joint family property by a father and

the question is whether such a gift is void or only voidable at the instance of a coparcener.

In -- ''Baba v. Timma'', 7 Mad 357 (A) a Full Bench of this court examined the relevant texts relating to the power of a father over ancestral

Immovable property and held that except for purposes warranted by special texts, a Hindu father, while unseparated from his sons, has no power

to alienate to a stranger his undivided share in the ancestral moveable and Immovable property.

Collins C.J. and Muthuswami Aiyar J. in -- ''Ramanna v. Venkata'', 11 Mad 246 (B) were considering the question as to the validity of a gift

made by a Hindu of a certain land which he had purchased with the income of ancestral property in a suit brought to recover the land on behalf of

his minor son, who was born seven months after the gift. It was held in that case that the gift was invalid as against the plaintiff (the son) and that he

was entitled to recover the land from the donee as the property was ancestral property.

In that case a suit was already brought by the father to set aside the gift and he failed and with reference to a contention that by reason of holding

the gift to be invalid the son''s claim being decreed, the property would be recovered by the son in which his father would also have an interest

being a property of the joint family and that what the father could not himself recover in a suit would be achieved by granting a decree in favour of

the son, the learned Judges, while observing that there was no doubt an apparent anomaly, stated that: ""the real question is whether the property in

question continues to vest in the Joint family.

The gift is not binding on the family either in part or in whole, and the property in the subject of gift originally vesting in it is not divested by it, and

we are, therefore, of opinion that the power of interdiction includes a right to see that the family estate is preserved for the family until a partition is

made ..... in our Judgment, the decision must depend not on the question whether the father or the son may happen to die in coparcenary, taut

whether the gift was valid at the time when it was made and whether it operated to transfer the property in the subject of the gift from the family to

the donee either in part or whole.

In -- ''Rottala Ranganatham Chetti v. Pulicat Ramaswami Chetti'', 27 Mad 162 (C), a Full Bench of this court observed that it has been definitely

settled by judicial decisions that it was incompetent to an undivided member of a Hindu family to alienate by way of gift his undivided share or any

portion thereof, and that such alienation was void ''in toto''.

A similar question arose in -- Kavuru Venkatappayya Vs. Kavuru Raghavayya, where a gift deed was executed by the plaintiff for himself and

on behalf of his minor son in favour of the defendant conveying an item of joint family property and a suit was instituted by the executants

themselves stating that being a gift of joint family property the deed of gift was void and praying for a declaration that the gift was not true and was

not valid in law and enforceable, the court found in favour of the invalidity of the document as one in the nature f a joint family property, which

conveyed no title whatsoever to the defendant. Raghava Rao J. who decided the case, referred to the earlier decisions on the subject and

observed that the well-recognised common law maxim that a man shall not derogate from his own grant had no application to a case in which the

personal law of the parties rendered altogether void a grant by him which must therefore be treated in the eye of the law as altogether ''non est''

and there being no rights created by a void transaction of that kind there was no estoppel or any other kind of personal bar akin thereto which

precluded the plaintiff from asserting his right to recover.

It is now well-established that a Hindu father has no power to gift away ancestral and joint family property in part or in whole except for the

special purposes laid down in the text, which are limited and circumscribed and that too of small portions of moveable and Immovable property,

mostly to discharge a necessary moral obligation cast on a Hindu father or manager of the family. A gift otherwise is void in its inception and a

document evidencing such a gift does not convey any interest to the donee. The gift can therefore be ignored and persons entitled to the property

can treat the property so gifted as continuing to vest in the joint family and not haying been transferred to the donee notwithstanding even that

possession of the property may have passed to the donee. It is not necessary for a coparcener or any other member of the joint family who claims

to have a right or interest in the property to Interdict a gift as an alienation not binding on the family but to ignore the transaction and sue to enforce

his or her rights to the said property.

It is, however, contended that in the present case the gift has been made with the consent of the coparceners and is therefore perfectly valid.

Though a gift of coparcenary property is not as such recognised even if it is by the entire body of coparceners, a transaction evidencing the gift of

ancestral property to which all the coparceners were parties cannot, however, be attacked as void ''in toto'' as all the coparceners that claim to

have an interest in the property must be deemed to be parties to the gift and the gift does not become invalid as the interest of any other person is

not affected by such transaction. Therefore, there cannot be any real difficulty in upholding a gift with the consent of all the coparceners the gift

being to one of the coparceners themselves of a property of the family or even to a stranger or charity provided nobody''s interests are affected.

To support the validity of such a gift, there should not certainly be any minors or a child in the womb existing on the date of the gift.

Exhibit B. 27 is in favour of the defendants, who are the other coparceners with a life interest reserved to their grandmother, Ratnathachl.

There is nothing in the document itself to evidence any such consent. They appear to have been majors on the date of the gift, but their attestation

even has not been obtained. The consent is sought to be proved by the fact of their consenting to the mortgage of the properties to the Land

Mortgage Bank, Kodavasal, by their letter Ex. B. 26 dated 25-6-1945. But there is no reference in that letter to Ex. B. 27 and what is stated there

is that they have no objection for a loan being granted to their father on the mortgage of their family properties. They treat the properties as family

properties not as properties obtained by way of a gift. The first defendant in his evidence stated that at the time of Ex. B. 37 his father had no other

sons and they consented to the settlement deed. It would certainly now suit the defendants to make that statement, especially as Ratnathachi is

dead and there is no bar to their taking the property absolutely under the gift. But even here, the second defendant has not examined himself and

spoken as to whether the gilt was consented to by him. The appellants have failed to establish that the consent of the coparceners was obtained to

Ex. B. 27. It was suggested that the plaintiff had another son at the time, who was a minor and who is stated to have subsequently died, but there is

no satisfactory evidence to prove the existence of a minor son on the date of Ex. B. 27.

It was, however, contended that the plaintiff, who was the wife entitled to maintenance out of Joint family properties having been in existence

on the date of the gift, her rights to the properties could not be taken away without her consent lay Ex. B. 27. The question therefore aifees

whether her consent would be necessary to validate a gift of such a nature. It appears to as that her consent is unnecessary as the wife is not a

coparcener, but only a member of the joint family, and if the coparceners that are in existence express their unqualified consent, there feeing no

minor or child in the womb the gift could be supported, notwithstanding that the wife or maintenance holder was alive on the date of the gift.

But how far such a gift would be binding on the wife or others entitled to be maintained from the joint family estate is a different question, which

will be dealt with presently. Suffice it to observe that a gift made with the consent of all the coparceners, where there is no minor or child in the

womb, could not be attacked as being void ''in toto''; but still will it be open to interdiction by ft person affected by such a gift, as for instance, a

wife or other maintenance holder;

The answer would depend upon as to what the rights of a widow are under the Hindu law as it now stands modified, if any, by the enactment of

the Hindu Women''s Rights to Property Act of 1937. Prior to the Act, she was only entitled to a right of maintenance from and out of the joint

family estate. But the Act, which was enacted for the purpose of giving better rights to women in respect of property, conferred on her the same

interest which her husband possessed at the time of his death in the joint family estate. This is evident from Section 3, Sub-section (2) of the Act.

She became therefore entitled to ask for a share in the property, that is, such share as her husband would have been entitled if he was alive, which

she could enforce in a suit for partition.

But any interest which devolved on a Hindu widow under the provisions of Section 3 would be the same limited interest which she possessed and

known as a Hindu Woman''s estate. The only right conceded to her under the Act is to enforce a right to partition as a male owner and claim for

partition and separate possession of her husband''s share in the joint family properties. Prior to the Act, her rights were only confined to

maintenance out of the estate. Though a member of the joint family she was not a coparcener, as she had no right by birth. As any alienation of

joint family property made by the manager could only be challenged by a coparcener, who had an interest in the properties alienated which he

acquired by birth, the widow not being a coparcener could not therefore be entitled to interdict an alienation made by the manager. The Act does

not, in our opinion enlarge her rights except to the limited extent provided in the Act, namely, to ask for a partition of her husband''s share which

she would however be entitled to hold and enjoy as Hindu woman''s estate, and her position and status in the joint family is not in any way affected

or varied by the enactment. She continues to be a member of the joint family and does not become a coparcener, however much she might have

become entitled to the interest which her husband possessed in those properties.

In -- Jonnagadla Seethamma and Another Vs. Jonnagadla Veerana Chetty and Others, , a Bench of this Court consisting of Rajamannar C. J.

and one of us (Krishnaswami Nayudu J.) held that under the Act, the status of a Hindu widow of a deceased member of a joint family, governed

by the Mitakshara, is not that of a coparcener, but that of a member of the joint family with certain special statutory rights. The question that arose

for decision in that case was whether a widow of a deceased coparcener could, in claiming partition under the Act, ask for an account from the

''karta'' on account of his management of the joint family. It was held that she was not entitled to an account. It was observed as follows:

We do not understand the effect of the Act is to confer larger rights on the widow of a deceased coparcener than the rights which the coparcener

certainly would have been entitled to if he were alive. Now, a coparcener cannot demand from the ''karta'' an account of the management of the

joint family except in special circumstances, e.g. fraud, misappropriation, etc. It does not stand to reason though the coparcener would not have

that right, his widow would have it.

These observations may be urged in support of the contention that whatever rights her deceased husband possessed at the time of his death, she

would be entitled to, but not to any higher rights.

Speaking for myself, it was never intended by those observations that the widow of a deceased coparcener would be entitled to all the rights which

he had at the time of his death including the right to interdict an alienation made by the manager on the ground of want of legal necessity. That right

to attack an alienation can only vest in a coparcener and not in any member of the joint family including the widow. The position that the widow is

not a coparcener in a joint family is well-known .and it cannot be said that she becomes a coparcener by reason of any right conferred on her by

the Hindu Women''s Rights to Property Act of 1937. The only provision which has been urged on behalf of the respondent''s counsel giving her

such a right is Section 3, Sub-section (2) which says,

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.

Interest"" has been understood to extend to estates, rights and titles that a man hath of, in to or out of lands (Wharton''s Law Lexicon, 14th Edn

page 528). It is argued that whatever right, title and interest her husband had in respect of the property the widow became entitled and that her

husband having a right of action to question an alienation by the manager, such right must be deemed to have been conferred on the widow under

the Act, notwithstanding that she is nob a coparcener.

In -- ''Saradambal v. Subbarama Ayyar'', AIR 1942 Mad. 212 (F), a question having arisen whether the property taken by a widow under the

Act was liable for the payment of her husband''s debts. Venkataramana Rao J. held that the widow takes the husband''s interest subject to the

rights and obligations attached to that interest and that interest was the interest of an undivided member of a joint family in the joint family property.

In -- ''Natarajan Chettiar v. Perumal Animal'', AIR 1943 Mad. 246 (G), where a question arose as to whether succession certificates would

be necessary for a widow to recover the amount due on a pronote of which the husband was the payee, Horwill J. observed that the widow does

not obtain a right given under the Act by survivorship or by inheritance and the effect of Section 3, Clauses 2 and 3 may be considered as a

survival of the husband''s persona in the wife giving her the same rights as her husband had except that she can alienate the property only under

certain circumstances. The same learned Judge in another decision in -- ''Satyanarayanacharlu v. Narasamma'', AIR 1943 Mad 703 (H), observed

that the widow by reason of the Act stands in the shoes of her deceased husband, that although she is not a coparcener, she has the rights of her

husband, who was a coparcener, that she is a member of the joint family and the person to bring a suit on a debt due to the family is her son on

behalf of the joint family.

In -- Nagappa Narayan Shetti Vs. Mukambe Venkatraman Shetti, , it was held that under the terms of Section 3, Sub-Ss. (2) and (3) of the

Hindu Women''s Rights to Property Act, 1937, there is ho right of survivorship created in a Hindu widow; but that does not necessarily lead to the

inference that what she has got is an estate of inheritance, and it is, therefore, neither survivorship nor inheritance, but is a special property which is

created for the widow''s benefit which she gets by reason of her being the widow of a deceased member of a joint and undivided Hindu family.

Bhagwati J. expressed in his judgment his agreement with the view of Horwill J. in-- AIR 1943 Mad. 246 (G)'' as representing the true position in

law of a widow under the Act namely, that the effect of Section 3(2) and (3) might be regarded as a survival of the husband''s persona in the wife

giving her the same rights as her husband had, except, that she could alienate property only, under certain circumstances and that, as the widow did

not inherit her right, no succession certificate would be deemed to be necessary.

In -- M.C. Chinniah Chettiar Vs. Sivagami Achi alias Sornam Achi and Others, . the word ""interest"" in Sub-Ss. (2) and (3) was held to mean not

the same thing as the word ""share"" as the Interest which the husband had in the family estate was a fluctuating interest. That is because the interest

which the deceased husband enjoyed at the time of his death; and which came to be enjoyed by the widow after his death by virtue of Section 3(2)

of the Act was the undivided share, right, title and interest in the family properties fluctuating by its nature, capable of being increased by deaths

and decreased by births in the family and capable of being defined or fixed only at the time when a severance of joint status was effected or a

partition was claimed, as pointed out by Bhagwati J. in, the above referred case.

The view of Venkataramana Rao J. In-- Saradambal Vs. S. Subbarama Aiyar, '' that the widow takes the husband''s interest subject to the

rights and obligations attached to that interest and that interest was the interest of an undivided member of a joint family in the joint family property

and the observation of Horwill J. in --'' AIR 1943 Mad. 246 (G)'' that the effect of the Act may be considered as a survival of the husband''s

persona in the wife giving her the same rights as her husband had, and the further observation of the same learned Judge in --''AIR 1943 Mad. 708

(H)'', that the widow stands in the shoes of her deceased husband might lend support to the argument that whatever rights and liabilities to which

her husband was entitled and subjected, the widow would become entitled to the same rights and subject to the same obligations, the rights

including a right by her husband to interdict an alienation made by the manager without his consent and not being for any legal necessity.

It is impossible to ignore the true position and status of a Hindu widow in a Hindu joint family under the general Hindu law she being only a

member of the joint family entitled to the right of maintenance, not being a coparcener and not being entitled to all the rights which a coparcener

possesses and even though the object of the Act was to enlarge her rights in respect of property, unless there is any specific provision in the Act

conferring on her all the rights which her husband-coparcener had, it will not be safe to infer from the use of the word ""interest"" in Section 3(2) that

all the right, title and interest which her husband had she become entitled to including a right of action which he would have had to question an

alienation if he had been alive: ""Interest"" in Section 3(2) of the Act could only be understood to mean the quantum of interest which the husband

would be entitled to in the joint family properties, though not the share which he had at the time of his death, which share would certainly be

fluctuating by reason of uncertainties in the lives of the members of the Joint family before the time when the widow actually asks for a partition.

Interest"" cannot be extended to mean all that is connoted by that term bringing within it all the rights of a coparcener.

The right to interdict an alienation is one peculiar to a member of a coparcenary, which he gets by reason of his having acquired an interest in a

property immediately on his conception or birth and which right could be exercised by him alone and not by any other member of the family his

wife or daughter. The Act only conferred on the widow a right to claim partition and separate possession of whatever her husband was entitled to

in the Joint family property on the date of the partition claimed by the widow, instead of her right to claim a sum of money as and for maintenance

out of the estate. Though there is no doubt that the Act does not effect a severance of the joint family on the death of the member of the joint

family, who leaves a widow, and the joint family continues for all practical purposes, at any rate on the date of the partition her husband is treated

as a divided coparcener on the date of the partition at the instance of the widow and his share which is allowed to be taken by his widow is what

the widow of a separated member would be entitled in the absence of an issue to inherit In her husband''s property. By this observation we do not

hold that the estate which she gets is by inheritance and we are inclined to agree with the view taken by Bhagwati and Dixit JJ. in Nagappa

Narayan Shetti Vs. Mukambe Venkatraman Shetti, , that under the Act she does not get either by survivorship or by Inheritance, but it is a special

statutory right which she gets solely by reason of her being the widow of her husband. She would not be entitled to question any alienation made

by the manager even though her husband would be entitled to such a right. ""Interest"", therefore, in Section 3(2) of the Act does not include a right

to interdict an alienation, or any other right, which her husband possessed and which could only be exercised by a coparcener and not by any

member of the joint family.

In this case, however, there is no question of an alienation by a manager as the alienation is by her husband himself, and it is also not necessary

for the widow to question the validity of Ex. B. 27, as it is a gift by a coparcener of joint family property which we have held on the evidence as

having been made without the consent of the other coparceners and therefore void at its inception, Ex. B 27, not having the effect of transferring

validly any rights in the property in favour of the defendants. In such a case the properties covered by the gift must be deemed to have continued to

vest in the joint family as joint family properties and the widow in this suit for partition can, as she has done, ask for a share in those properties

covered by Ex. B, 27, ignoring the document altogether. In that view, in so far as her claim to a share in these properties is concerned, she would

be entitled to it in view of the void nature of Ex. B. 27.

The Act, which has been brought into the statute book for the purpose of giving better rights to married women and dealing only with a

particular and defined aspect of the widow''s rights to joint family property and not being comprehensive enough and not pretending to cover all the

rights which a Hindu widow would be entitled to In respect of joint family property, has given rise to certain difficulties and anomalies in the matter

of ascertaining and adjudicating on a Hindu widow''s rights in general in or to the Joint family property. If instead of a gift, her husband had

alienated most of the family properties in favour of strangers for a consideration with a view to deprive his widow of any share or made an

alienation by which her share would be considerably reduced, though such an alienation would not be upheld if challenged by a coparcener, if in

such a case she claims a partition under the Act, she could only ask for a share in the joint family property as it then stands, the extent of which

must have been considerably reduced by reason of the improvident alienation made by her husband 6r by the ''karta'' of the family. In such a case,

she would be disentitled from questioning the alienation, as under the Act she would be entitled only to such interest or the quantum of share which

her husband would be entitled on the date of the partition.

But, if she sues for maintenance against her husband''s estate, she might invoke the provisions of Section 39, T. P. Act, & enforce her right to

maintenance against any transferee, if he had received notice of her right to receive maintenance, or if the transfer is gratuitous. She could, in a suit

for maintenance, claim a reasonable sum on the basis of the entire joint family property, and enforcing such a right even against the aliences. Such a

right is denied to her under the Act in view of its special restricted provisions. This is one of the anomalies where the Act which was promulgated

to give her better rights to property results in practically diminishing her rights, if she is to sue for partition and recover a share.

But the question has been raised whether the right of the widow to maintenance still subsists after her being given a right to partition and to recover

her husband''s interest in the joint family property. It is stated in Mayne''s Hindu Law, 11th Edn. at page 711.

The rights to maintenance of the widows mentioned in the Act are not expressly abolished; but it is obvious that as the Act confers upon the

widow rights of succession in respect of all the husband''s property, the right of maintenance allowed to her under the ordinary Hindu law would no

longer be available; for Hindu law allows them maintenance only because of their exclusion from inheritance and from a share on partition.

The widow''s general right to be maintained out of the joint family estate has not been taken away by the Act, since there is no reference to it. In

the view of the framers of the Act, as indicated in the preamble, the Act was ""to give better rights to women in respect of property"". They have

been given a right to partition and to claim a share and there is nothing in the Act expressly taking away their right to maintenance and it does not

appear to us that even by implication it could be suggested that the right to partition was in substitution of any other right including the right to be

maintained out of the Joint family estate. Courts were obliged to arrive at this conclusion, namely that it would still be open to the widows to claim

maintenance apart from partition by reason of the fact that the Act, as originally passed before the amendment of 1947, did not give a right to the

widow to claim a share in agricultural lands.

In -- T. Sarojini Devi Vs. T. Sri Kristna, , where a widow claimed maintenance in addition to a share in the non-agricultural properties, the

question arose as to her right to claim maintenance in addition to a share in the non-agricultural properties and Patanjali Sastri J. (as he then was),

in delivering the judgment of the Bench, observed at page 402:

The question accordingly arises whether, notwithstanding the right to a share in the non-agricultural properties of the family allowed to her under

the Hindu Women''s Bights to Property Act, 1937, the widow of a deceased coparcener is still entitled to any right of maintenance as under the

ordinary Hindu law. It seems to us that this question must be answered in the affirmative. It may well be that, if the Act conferred upon the widow

a right of succession in respect of all her husband''s property, the right of maintenance allowed to her under the ordinary Hindu law as

compensation for her exclusion from inheritance would no longer be available although nothing is said in the Act about right of maintenance. But

that is not the position according to the decision of the Federal Court already referred to (In re the Hindu Women''s Rights to Property Act AIR

1941 72 (Federal Court) The widow still stands excluded from succession to agricultural land in the absence of provincial legislation on parallel

lines in respect of such land. It cannot, therefore, be said that the reason of the right had ceased to exist and the right is gone. It would be strange

and anomalous if, as a result of an enactment designed to give ''better rights'' to the widow, she were to be placed in a worse position by being

deprived of her pre-existing right of maintenance, with consequences which may well prove disastrous where the bulb of her husband''s joint or

separate property consists of agricultural land.

By reason of the amendment of 1947 whereby the widow had become entitled to claim a share in all the properties of the joint family including

agricultural lands could it now be contended that a suit for maintenance by the widow after this enactment would not be maintainable. It may be

argued, however that the reason for the right has ceased to exist. But in view of the rather disastrous consequences that might result in confining her

right to a partition in the circumstances arising out of the alienation of the joint family properties involving deprivation of the widow of her just share

in the properties and her inability to question an alienation made by the manager or coparcener during the lifetime of the husband, it could not

reasonably be held that the right to maintenance no longer subsists. There is nothing in the Act to deprive the widow of her right to make her choice

as to whether she would have a decree for maintenance or a decree for partition. That would depend upon the view the widow would take of the

benefit she would realise by adopting one course or the other. We find it difficult to agree with the view taken by the learned commentator of

Mayne''s Hindu Law, 11th Edn, at page 711, that the right of maintenance allowed to her under ordinary Hindu law would no longer be available.

It does not appear to be obvious though the reason behind the enactment is to place the Hindu women in a better position than they were. But,

when it is shown that, by reason of her being confined to a particular course of action, she would not be in a better position than what she was

before the Act, it will be inequitable and will cause hardship to her to take away the general right which she has under Hindu law to claim

maintenance, unless we are forced to such conclusion by any express language in the Act taking away her right to maintenance.

Rights conferred under law cannot be deemed to be taken away impliedly by any subsequent enactment, unless there are express words in the Act

to justify the conclusion. As maintenance generally under Hindu law is allowed only because of the persons claiming maintenance being, excluded

from inheritance and from a share on partition, it can reasonably be urged that once that share is conceded under legislation, the right to

maintenance is taken away. But there is nothing in the Act which could be construed to yield to such a result. The use of the words ""to give better

rights to women"" in the preamble may be relied upon to show that the right of maintenance was a lesser right the better right being a share and a

right to partition such share must be deemed to be in lieu of maintenance. However, in view of the difficulties and hardship which result in the

application of the Act, we are prepared to deprive the widow of a right which she possesses under the general Hindu law. There being no

provision expressly taking away her right to maintenance, such a right to maintenance is not abolished and will still be available and the option

would rest with her to claim maintenance or a share, but not both.

In the result, the appeal is dismissed with costs.