B. Venkataswami, J.
1. This appeal, by the first defendant in O. S. No. 260 of 1964, on the file of the Court of the Munsiff at Viraipet, is directed against a concurring judgment made by the learned Civil Judge at Coorg, Mercara, in Regular Appeal No. 58 of 1966.
2. The material facts, briefly stated, are as follows:-- The suit is one for declaration that the plaintiff is the owner of the suit schedule properties and thus entitled to the possession thereof with mesne profits. The Pedigree of the parties is as follows:
SUBBAIAH_____________________|__________________| |Karumbaiah (deceased) Machaiah (deceased)| |Mandappa-Ummavva Achappa(wife) ___________|__________| | |Ponnavva Machayya Ganapathy(Respondent-1) (Appellant) (deceased)
It will be seen from the above pedigree that the plaintiff is the daughter of one Mandappa, who died in the year 1941, leaving behind his widow, Ummawa and the present plaintiff. The said Ummawa died in the year 1961. The first defendant in the suit is the son of one Achappa who was the grandson of Subbaiah, the great grandfather of the plaintiff. It is the case of the plaintiff that her grand-father, Karumbaiah, came into possession of the suit properties by virtue of a division evidenced by a document dated 11-12-1892, marked as Exhibit A-5, after the death of Karumbaiah, Mandappa continued to be in possession of the suit properties, and after his death Ummavva was in possession of the same. Sometime after the death of Ummawa, the plaintiff is said to have been dispossessed by the appellant herein. Hence the suit for declaration of possession and mesne profits. On behalf of the appellant first defendant it was contended, inter alia, that on the death of Ummawa, the properties reverted to the surviving male descendants of the family of Subbaiah. It is conceded that the law governing the Hindus in Coorg was Mitakshara, subject to any modifications based on customary law governing the parties. It is contended that there cannot be any partition of the properties belonging to a joint Hindu family in Coorg. according to the customary law prevailing in the territory. It is also contended that even if there was any division, it was only for the purpose of maintenance. Therefore, on the death of the sole surviving coparcener of any such divided family, the properties would revert to the male descendants of the family. In other words, the person in the position of the plaintiff as also her mother, Ummawa, could not have succeeded to the properties held by Mandappa as the sole surviving coparcener, on his death. It is also contended that the suit was one for partition and separate possession and therefore, it was barred under Section 145 (xv) of the Coorg. Land and Re-venue Regulation (1 of 1899), hereinafter referred to as the 'Regulation'.
3. The trial Court came to the conclusion that there was a division, in fact, under Ex. A-5 of 11-12-1892 and that Ummawa succeeded as a limited owner. On the death of Ummawa, the present plaintiff was clearly entitled to succeed to the properties. The suit was, therefore, decreed. On appeal by the present appellant, the learned Civil Judge confirmed the said findings and dismissed the said appeal. In doing so, he came to the conclusion that the plaintiff first respondent was clearly entitled to succeed to the estate of Ummawa as her nearest heir as the limited estate in the hands of Ummawa stood enlarged into a full estate by virtue of the provisions of Section 14 of the Hindu Succession Act, hereinafter referred to as the 'Act'. He further held that on the death of Mandappa, by virtue of the provisions of Section 3 of the Hindu Women's Rights to Property Act, 1937, hereinafter referred to as the 'Act of 1937 his widow, Ummavva, was entitled to succeed to the estate as a limited owner. He also came to the conclusion that even otherwise, by virtue of the fact that the parties were governed by the Mitakshara Law of succession, as in vogue prior to the Act of 1937, Ummawa acquired a limited estate, which in its turn was enlarged into a full estate by virtue of the provisions of the Act. As regards the bar of jurisdiction of a Civil Court pleaded pursuant to Section 145 (xv) of the Regulation, he came to the conclusion that the suit was not one for partition and separate possession, and therefore, the said provision was no bar to the present suit.
4. In this appeal, Sri P. P. Boppanna, the learned Advocate, urged the following contentions; (1) that the suit was essentially one for partition and separate possession of the properties, and therefore, not maintainable under Section 145 (xv) of the Regulation; (2) that the provisions of the Act were inapplicable to the facts of the present case, inasmuch as, Ummawa, the mother of the first respondent herein, could not have succeeded to the estate by virtue of the provisions of Section 3 (1) of the Act of 1937, as the said provisions were inapplicable to agricultural lands for one thing and to the joint family properties of a Hindu for another.
5. I shall now proceed to deal with the above contentions in the light of the arguments addressed at the Bar. In support of the first contention, Sri Boppanna drew attention to the schedule to the plaint, wherein the properties have not been particularised with reference to extent and boundaries, and only portions of land, claimed on behalf of the first respondent, have been mentioned. If the suit is one for partition, Sri Bopanna would be clearly right in his contention that the suit would not be maintainable, in view of the decision of this Court in Coravanda A. Nanjappa v. Coravanda M. Thimaya, (1963-2 Mys LJ 486). The lower appellate Court has come to the conclusion that the suit was not one for partition, and therefore, clearly not hit by the provisions of Section 145 (xv) of the Regulation in question.
6. On behalf of the first respondent, Sri C. B. Motaiah, the learned Advocate, drew attention to the reply filed as part of the pleadings in the case, and submitted that as the suit was one for recovery of possession of specific properties, there was no question of seeking partition and separate possession of the share of Mandappa. I have been taken through the relevant portions of the pleadings and I am clearly of opinion that the suit is one for possession of specific properties and not one for partition and separate possession of a share. It is seen from the amended schedule produced along with the reply that the properties have been described specifically with reference to extent, boundaries and assessments. In this view of the matter, the conclusion of the Court below that the suit was not for partition, and Possession has clearly to be sustained. Hence, this contention has to be rejected.
7. On the next contention. Sri Bopanna placed reliance on a decision of the Federal Court in Umayal Achi v. Lakshmi Achi. , and contended that in the present case, if the first respondent were to claim the properties as the heir of Mandappa, she Could do so by invoking the provisions of Section 3 (1) of the Act of 1937. The argument is that Section 3 (1) deals with the 'separate property' of Hindus and not the joint family property, and the suit properties are admittedly the joint family properties. It is, therefore, his contention that Section 3 (1) of the Act of 1937 would not at all be attracted. It is no doubt true that the above decision clearly lays down that the 'separate property' contemplated under the provisions of that sub-section does not take within its ambit the property held by a Hindu as the last surviving coparcener of a joint family. But, in my view, the provisions of Sub-section (2) of Section 3 of the Act of 1937 would be clearly attracted to the facts of the present case. It reads thus:
'2. When a Hindu governed by any school of Hindu Law other than the Dayabhaga school or by customary law dies having at the time of his death interest in a Hindu joint family property. his widow shall, subject to the provisions of Sub-section (31 have in the property the same interest as he himself had'.
Sub-section (3) of Section 3 reads thus:
'Any interest devolving on a Hindu, widow under the provisions of this section shall be the limited interest known as a Hindu Women's estate, provided however that she shall have the same right of claiming partition as a male owner.'
8. It is not in dispute that Mandappa, the sole surviving coparcener of the branch of Karumbaiah, died in the year 1941, that is after the coming into force of the Act of the 1937. It cannot also be gain-said that he had an interest in the properties in question as a sole surviving coparcener of the family. That being so, I am clearly of view that whatever interest he had in tile properties, which in the present case is one of absolute ownership, would pass on to his widow, Ummavva, who survived him. It is well settled that in such an event, the widow gets substituted in the place of her husband in so far as her husband's 'interest' in such joint family properties is concerned. (Vide : 1SCR7 ). In this position by virtue of Sub-section (3) of Section 3 of the Act of 1937, she would clearly acquire a limited interest in such properties, which is known as a 'Hindu Women's Estate'.
9. It is also undisputed that the said Ummawa died after the coming into force of the Act. In these circumstances, it is clear that the limited estate in the hands of Ummavva stood enlarged into a full estate by virtue of the provisions of Section 14 of the Act, and therefore, her daughter, the present plaintiff, would be clearly entitled to inherit the same. But, it was contended that the Act of 1937 would not at all apply to agricultural lands. Reliance in this behalf was placed on the very same Umaval Achi's case decided by the Federal Court. It is true that it was observed therein that the said Act would not operate on agricultural lands in the then Governor's Provinces. But the question is whether Coorg, the territory with which we are concerned in the present case, was one of such Governor's Provinces. It is not seriously disputed that it was designated as a Commissioners' Province at the relevant time, and therefore, a Centrally Administered Area, notwithstanding the fact that there was a Legislative Council functioning in regard to such territory which was competent to make laws in regard to matters vested in it. It is seen from Umayal Achi's case, AIR 1945 FC 25 itself, that there is a reference to the competency of the then Central Legislature to make laws for the Commissioners' Provinces, such as Coorg. The observations to this effect occur at page 31 of the above cited decisions. The said observations are:
'The Court, as a Court of construction, searched for a 'reasonable limitation' to these general words and so construed the words as not to attribute to the Legislature an effort to enlarge its jurisdiction beyond the powers committed to it. On this view, it was said that in the present case, the word 'property' would mean one thing for the Governors' Provinces and a different thing for the Commissioners' Provinces because, in respect of the latter, the Indian Legislature enjoys the powers of the Central Legislature as well as the Provincial Legislature. This anomaly is the result of the constitution and is not due to any defect in the measure...........'
(Underlining is mine).
It seems to me that from the above observations, it is clear that the Act of 1937, an enactment of the Indian Legislature, would be applicable to the territory of Coorg. The said Act makes no exception with regard to agricultural lands. It follows from this that the Act of 1937 would operate to control the devolution of the agricultural lands possessed by the Hindu family, in Coorg. Hence this contention cannot be accepted.
10. Apart from the foregoing aspect of the matter, I am clearly of the view, that in spite of the Act of 1937, Ummawa, the mother of the first respondent herein, would inherit the properties of her husband as a limited owner after his death under the customary Mitekshara law governing the Hindus. It has not been contested in any manner that in the absence of the customary law governing the matter, customary Mitakshara law would be applicable to Hindu families in Coorg, to which the parties to the present suit belong. As regards the customary law governing the matter, no serious argument has been advanced in the present appeal. Nor do I find any evidence in support of the existence of such a custom amongst the Coorg. Hindu families. In this view of the matter also, it must be held the Ummavva succeeded to her husband's estate in the year 1941 as a limited owner. Once this position is reached, it follows that Section 14 of the Act would come into play, resulting in an enlargement of such estate into a full one in the hands of Ummavva, It further follows from this position that the present plaintiff-first respondent would be clearly entitled to succeed to the said estate in the hands of Ummavva as her daughter and heir. Hence, this contention has also to be rejected,
11. In this context. It Is relevant to refer to a decision of this Court in Machanda Somaya v. Machattirg Muthamma, (R. A. No. 160 of 1955), the judgment in which was rendered on 15-7-1960. A similar contention, as the second one urged, by Sri Bopanna in this appeal, was urged therein. The Court held that the custom relating to impartiality of the properties of a Joint Hindu family belonging to Coorg had not been established. It further held on the basis of the judgment of the Judicial Commissioner of Coorg in Second Appeal No. 20 of 1890 that such partition of the joint family properties was clearly permitted. In that context it did not accept the observations made by Major-General Rob Cole in the Manual of Coorg Civil Law in paragraph 160 of that Book. It referred to with approval, the following observations of the Judicial Commissioner:--
'Division of family property with the common consent is permitted by usage and recognised by law. A division so made is of something more than a temporary character, but so long as the family continues in other respects undivided, that is, represented by one member as Pattadar, the members of the family retain a reversionary interest in case of a share lapsing owing to the death of a member without heirs and no member could dispose of his lands by sale or otherwise except with the consent of other members'.
It is seen from the above enunciation that a partition and division of the property was clearly permissible, except in the circumstances mentioned therein. It is. however, relevant to mention that in the present appeal, this aspect of the matter was only faintly argued, and there is no credible evidence adduced as to the existence of a custom against impartibility of properties belonging to a joint Hindu family in Coorg.
12. No other point was urged.
13. For the above reasons. I am clearly of opinion that this appeal should fail. It is accordingly dismissed. But, in the circumstances of the case, I direct the parties to bear their own costs in this appeal.