T. Sarojini Devi vs T. Sri Kristna

Patanjali Sastri, J.—These two connected appeals have been brought from a preliminary decree in a partition suit. One Ramachandra Rao

died on 23rd February 1939, leaving him surviving his widow (plaintiff), two sons (defendants 1 and 2) and an unmarried daughter by his

predeceased wife (defendant 3) and his mother (defendant 6). The sons and daughter being minors were represented by their maternal grandfather

defendant 4 who was appointed as their guardian for the suit. Defendant 5 was a stranger with whom Ramachandra Rao carried on business in

partnership as retailer of fancy goods under the style of Friends & Co. Soon after the death of Ramachandra Rao there were magisterial

proceedings and inventories were prepared of the moveables in the house including the articles belonging to Friends & Co., which had its shop in

the front rooms of the same premises. The plaintiff sued for partition and delivery of a third share of Ramachandra Rao''s properties which were set

out in five schedules annexed to the plaint. As Ramachandra Rao died undivided from his sons, the plaintiffs right to a share could only be based on

the ''Hindu Women''s Rights to Property Act, 1937, and though the claim was originally made in respect of all the properties it Was conceded that

she was not entitled to a share in the agricultural lands forming part of the estate, as it has since been held by the Federal Court that the Act does

not operate to regulate succession to agricultural land in the Governor''s Provinces but operates only in respect of other kinds of property: see AIR

1941 72 (Federal Court) . In the absence of parallel legislation by the Legislature of this province in regard to agricultural land this decision has

given rise to new problems in apportioning or allocating, among the full and partial cosharers, the common obligations to be borne by the estate as

a whole, such as claims of creditors, maintenance holders, and unmarried daughters, and some of those problems arise for consideration in the

present case. The first contention raised by Mr. Raghava Rao for the plaintiff relates to a mango-grove (item 36, Schedule A) forming part of the

estate. The Court below negatived the plaintiff''s claim to a share therein on the ground that it is agricultural land succession to which is not

regulated by the Hindu Women''s Rights to Property Act. While it has been held in the decision already referred to that succession to ''agricultural

land'' is a subject within the exclusive competence of the Provincial Legislature, there is no indication in the judgment as to what is ''agricultural

land'' within the meaning of entries No. 21 of List 2 and No. 7 of List 3 of Schedule 7, Government of India Act, 1935. No case throwing light on

the point has been brought to our notice though numerous decisions were cited as to the connotation of the term ""agricultural"" or ""agriculture

occurring in various other enactments relating, for the most part, to tenancy legislation in this and other provinces. Many of these statutes contain

their own definitions of the term and even where there is no definition the term had to be interpreted in the light of the object and general policy

underlying the particular enactment and of other indications afforded by it. It seems to us, therefore, not profitable to discuss in detail any of those

decisions as they cannot afford any useful guidance in the interpretation of the expression ""agricultural land"" in the Constitution Act. That Act has

not defined the term which has accordingly to be interpreted in its ordinary sense controlled, no doubt, by the context of the Act.

It is somewhat remarkable that a word in such common use as ""agriculture"" should have given rise to a. great divergence of judicial opinion in

regard to its interpretation. (His Lordship then referred and explained the decisions reported in Murugeaa v. Chinnathambi (1901) 24 Mad. 421,

Rajah of Venkatagiri v. Ayyappa AIR 1915 Mad. 781, Pavadai v. Ramasami AIR 1922 Mad. 351 and Chandrasekhara v. Doriaswami AIR

1931 Mad. 659 and proceeded.) It is unnecessary to refer to the decisions of the other High Courts as those to which reference has been made

sufficiently illustrate the difficulty in defining the term which admits of different interpretations. Mr. Raghava Rao however claimed that the decision

of the Privy Council in Keshe Prasad v. Sheo Pargash AIR 1924 P.C. 247, practically concluded the point in his favour, as it related more or less

to the same kind of property as we are now considering, viz., grove land. It was a pronouncement on appeal from the decision in Maharaja Kesho

Prasad Singh Vs. Sheopargash Ojha and Others, , where, following a line of cases decided by that Court, it was held that land granted by a

zamindar ""for the purpose of planting a grove the grantee agreeing to deliver one-half of the fruit to the zamindar"" was not ""land held for agricultural

purposes"" within the meaning of the Agra Tenancy Act. It would however appear that the earlier decisions in that province were based on the

peculiar status of ""grove-holders pure and simple"" who had no rights in the land after the trees were cut. Their Lordships simply expressed their

agreement with the opinion of the High Court that ""it is impossible to hold that that section (S. 79) has any application whatever to such a property

as the grove in fact is."" There is no discussion as to the connotation of the term ""agriculture,"" and no test of any general application is indicated. We

cannot therefore regard the decision as a conclusive authority on the question we have to decide in this case. As we have already pointed out, the

term ""agriculture"" is used in different senses and in order to ascertain in what sense it is used in the Legislative Lists in Schedule 7, Constitution Act,

we must have regard to the object and purpose of Section 100 of which these Lists really form part. That section deals with the distribution of

legislative powers as between the Federal and Provincial Legislatures, and the Lists enumerate the ""matters"" in respect of which those Legislatures

have or have not power to make laws. In such context it seems to us that the expression ""agricultural land"" must receive the widest meaning for it

would be somewhat grotesque to suppose that Parliament intended that lands devoted to the production of one kind of crop should devolve

according to laws passed by Provincial Legislatures, while those used for growing another kind should pass according to laws made by the Central

Legislature, or that ""the circumstances in which the cultivation is carried on"" (per Reilly J. in Chandrasekhara v. Doriaswami AIR 1931 Mad. 659

should determine the law which governs the devolution of the land. Nor could it have been intended that succession to such lands should depend

on the degree of tillage or preparation of the soil or of the skill and labour expended in rearing and maintaining the plants. We are of opinion that

for the purposes of the relevant entries in Lists II and III of Schedule 7, the expression ""agricultural lands"" must be taken to include lands which are

used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. It follows that the mango grove in

question is agricultural land in respect of which the Hindu Women''s Rights to Property Act, 1937, does not operate to regulate succession.

The only other items of Schedule A as to which the plaintiff raised any objection before us are 31 and 32, a house and a site, which defendant 4,

who was managing the properties on behalf of defendants 1 and 2 as their guardian, sold for Rs. 1750 during the pendency of the suit. It was

objected that the sale was for a low value and could not bind the plaintiff, but the lower Court has observed that neither the sale nor the price was

questioned, and it has decreed to the plaintiff her share of the sale proceeds. The objection cannot therefore be entertained at this stage. (The

plaintiff''s contention that she should have been given a third share of the moveables which bear the initials of Subba Rao, was accepted and the

plaintiff''s claim to a share in item 318 of Schedule B-l also succeeded.) (And as regards the jewels and gold and silver articles comprised in

Schedules B and B-l, his Lordship held that the plaintiff was not entitled to any share in the jewels claimed by defendants 6 and 3 respectively in

para. 17 (a) and (b) of their written statement.) These paragraphs, however, include not merely items of jewels, but also other items which are gold

and silver vessels. It seems to us that the plaintiff''s claim to a share in these articles stands on a different footing. While it may well be presumed

that the jewels found in the possession of a family belong to one or other of the ladies of the family as stridhanam property in the absence of any

clear evidence that they are family jewels, no such presumption can safely be made in respect of the gold and silver vessels and articles in the

possession of the family. As regards these moveables we consider that they must be treated as belonging to the family unless there is clear evidence

that they belong to one or other of the ladies of the family and the plaintiff must be allowed a share in these items. The evidence will have to be

examined from this standpoint.

The next contention in the plaintiff''s appeal relates to her claim with reference to the outstandings due to Friends and Co., and the articles

constituting its stock on hand at the time of dissolution. These are covered by Schedules C and D of the plaint respectively. As already stated,

Ramachandra Rao was a partner with defendant 5 in the fancy goods trade and the partnership must be deemed to have been dissolved on the

death of Ramachandra Rao. (After discussing the evidence his Lordship concluded.) Defendant 5 who has admittedly taken charge of all the assets

of the firm as they stood at the time of the death of Ramachandra Rao is bound to account to the plaintiff for her share of the net assets due to the

deceased partner at the time of the dissolution, with subsequent interest at 6 per cent. per annum. The only other dispute raised in the plaintiff''s

appeal relates to her right of maintenance. As already stated, in her plaint which was filed before the decision of the Federal Court referred to

above, the plaintiff claimed a third share of the entire family estate, but in view of that decision the claim, so far as it related to agricultural lands

which form a considerable portion of the estate, has failed. It is therefore urged for the plaintiff that she is entitled to maintenance as against these

properties which have passed exclusively to defendants 1 and 2 and that such maintenance should also be provided for in this suit. As there is no

prayer for this relief in the plaint, we have acceded to the plaintiff''s request to allow her to amend the plaint suitably so as to raise this matter. 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 Rights 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 rights of maintenance. But

that is not the position according to the decision of the Federal Court already referred to.. 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 has 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 bulk of her husband''s joint or separate property consists of agricultural land. We are therefore of opinion that the

plaintiff is entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. This share will,

of course, be taken into account in determining the sum payable to her. A similar conclusion, it may be observed, was reached by King J. in

Venkata v. Krishniah AIR 1943 Mad. 417. The main contentions raised in the defendant''s appeal were in regard to the provision to be made for

certain common charges on the family estate. Defendant 3 claimed that a provision should be made for her maintenance until her marriage and for

her marriage expenses. She also claimed that the jewels of her mother Raghavamma, the predeceased first wife of Ramachandra Rao, having been

given away by the latter to the plaintiff, their value should be paid to her as the stridhanam heir of her mother out of the estate as a liability incurred

by Ramachandra Rao. Defendant 6 the adoptive mother of Ramachandra Rao also claimed maintenance for herself. These claims were the

subject-matters of issues 6 to 9, but the learned Judge below has left them undetermined, as in his opinion it would be unfair to charge the limited

property in which the plaintiff is entitled to a share with these liabilities which should be more appropriately dealt with at a general partition of all the

family properties between defendants 1 and 2. While it would no doubt, be unfair to the plaintiff to debit the common liabilities chargeable to the

family estate as a whole against the non-agricultural part of it, for that would result in the agricultural lands in the hands of the defendants, which in

this case form the bulk of the family estate, escaping their just share of the burden, it would on the other hand, be unfair to-defendants 1 and 2 to

give the plaintiff her share in the non-agricultural part freed from these liabilities as the learned Judge has done, for this would have the result,

overlooked by him, of making these defendants solely responsible for the payment of these charges. It seems to us that the only equitable way of

dealing with these common liabilities will be to apportion them between :he non-agricultural part of the estate and the agricultural lands according to

their respective value after ascertaining the same , though these lands do not fall to be partitioned in this suit, and to charge to the share decreed to

the plaintiff a proportionate part of what is found debitable to the non-agricultural part of the state on such apportionment. It was said that such an

apportionment would not have due regard to the fact that while the plaintiff gets only the limited estate of a widow in the share allowed to her under

the new Act, the shares of defendants 1 and 2 have passed to them absolutely. But it is to be remembered that the liabilities are a charge on the

estate as a whole, and what is divisible among the cosharers is only the residue after setting apart what is necessary to meet these liabilities. The

fact that the widow is given only a limited right under the Act in the net divisible fund can have no relevance in the apportionment of the liabilities

among those who share it. We accordingly direct that provision should be made for the maintenance and marriage expenses claimed before the

plaintiff is given a decree for her share in the assets divisible in this suit. As regards defendant 3''s claim for the value of her mother''s jewels alleged

to have been given to the plaintiff by Ramachandra Rao, we consider that she should seek her remedy in a separate suit as it raises various

questions which cannot be conveniently gone into in this suit.

A minor point was raised as regards the date from which the plaintiff was to be awarded mesne profits in respect of the third share of the

immovable properties other than agricultural lands allowed to her. The lower Court held that she was entitled to such profits from the date of the

death of Ramchandra Rao. This is clearly wrong as the plaintiff admits in her plaint that she was in joint possession of the properties till the date of

suit. She will, therefore, get mesne profits only from that date. In the result, both appeals are allowed to the extent indicated and the case is

remanded to the lower Court for passing a revised preliminary decree in the light of this judgment, after making such further enquiry as may be

found necessary in that behalf. Parties will have liberty to adduce fresh evidence on all matters relevant to the enquiry. In A. S. No. 311 of 1942

the plaintiff''s costs as against defendant 5 will abide and follow the result. Otherwise we make no order as to costs. In A. S. No. 380 of 1942,

appellants 3 and 5 will be entitled to costs proportionate to their success and such costs will abide and be provided for in the revised preliminary

decree. The lower Court will make its own order as to costs in that Court. The court-fee on the memoranda of appeal and cross appeal will be

refunded.