1. This appeal raises an interesting question of law as to the true construction of Section 14 of the Hindu Succession Act, (XXX of 1956) read with Section 3(2) of the Hindu Women's Rights to Property Act, (XVIII of 1937) as amended by Act, XI of 1938. In order to appreciate the legal contention raised by Sri T. Ramachandrarao, the learned Advocate for the appellant, it is necessary to set out a few relevant facts.
2. The plaintiff-appellant is the adopted son of Venkatasiva Rao, the village munsif of Vijayavada, who died on 7-6-1956. The 1st defendant is the adoptive mother, i.e., the widow of Venkatasiva Rao (deceased). On 17-7-1956, the plaintiff instituted the suit for partition and separate possession of the plaint scheduled properties. He contended that on a proper interpretation of the terms of the Hindu Succession Act read with the provisions of the Hindu Women's Rights to Property Act, he is entitled to a three-fourths share in the suit properties and that the 1st defendant is entitled only to a one-fourth share.
There was also a dispute in regard to the moveables mentioned in schedule D. The learned Subordinate Judge held that under the provisions of the Hindu Women's Right to Property Act, the 1st defendant was entitled to a half share and that after the passing of the Hindu Succession Act, she was entitled to that half share absolutely. As regards the moveables, he decreed in part. The plaintiff has filed the appeal in regard to the moveables in schedule D which have been disallowed. A memorandum of cross-objections has been filed by the 1st defendant in regard to her stridhana jewels and a half share in the cash alleged to have been left by her husband, as also the costs disallowed.
3. The main question that was argued by Sri T. Ramachandra Rao, the learned Advocate for the appellant, is that as the 1st defendant did not claim partition under Section 3(3) of the Hindu Women's. Rights to Properly Act till the Hindu Succession Act was enacted, it must be held that 'she continued the legal persona of the husband till partition' and that under the terms of Section 8 of the Hindu Succession Act the plaintiff and the 1st defendant take the husband's half share equally.
His further contention was that the terms of Section 14 of the Hindu Succession Act do not apply inasmuch as the 1st defendant did not acquire any property in the husband's half share before the commencement of that Act by reason of no partition having been effected. Having carefully heard the arguments on both sides, I am inclined not to accept the appellant's contention.
4. In the Indian Leaf Tobacco Development Ltd.v. K.Kotayya, (S) : AIR1955AP135 , I dis-cusssed the scope and effect of Section 3, Sub-sections (2) and (3) of the Hindu Women's Rights to Property Act and observed as follows:
'Clause 2 deals with the interest of the deceased in a Hindu joint family. It provides that the widow shall have in the property the same interest as the deceased himself had and Clause 2 enacts that the Interest so devolving on the Hindu widow shall be the limited interest known as a Hindu Woman's Estate. It further provides that the widow shall have the same right of claiming partition as a male owner. A reading of Clauses 2 and 3 makes it! clear that until the widow claims partition, the family continues joint and she is entitled only to the interest which her deceased husband had. The widow is, therefore, not the owner of any specified or defined share in the property left by her husband. But the interest which is conferred on her under the Act may under Clause 3 be separated and worked out by filing a suit for partition.'
I followed decisions of the Madras High Court reported in Subba Rao v. Krishna Prasadam, : AIR1954Mad227 and Parappa v. Nagamma : AIR1954Mad576 (F. B.)
5. The first contention of Sri T. Ramachandra Rao is based upon certain observations made by Rajamannar, C. J. in : AIR1954Mad227 . The observation relied upon is based upon the text of Brihaspati and is in the following terms:
'What the Legislature would appear to have done is to extend this theory to widows of coparceners in a Mithakshara joint family and to have enacted that the interest of the husband will not lapse on his death, if there is a widow surviving because he is still in theory alive in his widow.'
The next observation that is strongly relied upon appears in the judgment of Subba Rao, J. (as he then was) at page 579 in : AIR1954Mad576 :
'The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced, namely, that she continued the legal persona of the husband till partition.'
Basing his argument on these observations, the learned Advocate for the appellant, contended that Venkatasiva Rao should be deemed in law to have died as on the date of the partition suit i.e., 17-7-1956 by which time the Hindu Succession Act had come info force. The fallacy underlying this argument is that the suit, for partition was filed by Venkatasiva Rao and not by the widow. If his argument is sound Venkatasiva Rao must bo deemed to have died on the date of her filing the written statement and agreeing to the partition i.e., on 1-8-1956.
6. The question for consideration is whether, on a true construction of Section 3, Sub-sections (2) and (3) of the Hindu Women's Rights to Property Act, the widow acquires no rights as on the actual date of death of Venkatasiva Rao viz. 7-6-1956. Subsection (2) of Section 3 is quite clear that when a Hindu governed by Mitakshara school of Hindu Law dies having at the time of his death an interest in a Hindu joint family property, his widow shall have in the property the same interest as he himself had.
Sub-section (3) provides that in respect of the interest which devolves on her under Sub-section (2) she shall have the limited interest known as the Hindu Women's estate and it further enacts that she shall have the same right of claiming partition as a male owner. It does not expressly or impliedly enact that the Hindu governed by the Mithakshara school of Hindu Law is deemed to live till his widow claims a right of partition.
It is significant to note that under the terms of Sub-sections (2) and (3) of Section 3, the interest of the husband devolves upon the widow immediately on the date of his death. No legal fiction is imported in the section and the legislature does not provide that the husband is deemed to live till she claims partition or files a suit for working out her rights,
7. The nature of Hindu Women's estate is clearly and lucidly laid down by Lord Shaw in Janki Ammal v. Narayanaswami Aiyer ILR 39 Mad 634: AIR 1916 PC 17 in the following terms:
'Her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but, to use the familiar language of Mayne's Hindu Law, paragraph 625, page 870, so long as she is alive no one has any vested interest in the succession,'' Sub-section (3) of Section 3 of the Hindu Women's Rights to Property Act enacts that the interest devolving on the Hindu widow shall be the limited interest known as Hindu Women's Estate.
It is clear from the decision in : AIR1954Mad227 that Section 3(2) of the Act does not operate as severance of interest of deceased coparcener, that the right which the widow gets under that section Is not as heir of her deceased husband but that it is a statutory right based on the recognition of the principle that a widow is the surviving half of her deceased husband and that incidents of that right are those specified in the Act.
As stated supra, the Legislature did not import any legal fiction, but the learned Chief Justice graphically described the principle underlying the section as being that the widow is the surviving half of her deceased husband or that the husband is still in theory alive in his widow. Similarly, Subba Rao J. (as he then was) explained that the section was based on the theory that the widow is the surviving half of the deceased husband. Any stray observation made by the learned Judges in the two cases stated supra ought not to be divorced from the Context and regarded as a Vedic text.
In this connection, Sri T. Ramachandra Rao, the learned Advocate for the appellant, invited my attention to the decision in Shantilal Rawji v. M. C. Nair : 34ITR439(Bom) and contended that the legal fiction must be allowed to have its full sway. He relied on the observations of Mr. Justice Mahajan in State of Bombay v. Pandurang Vinayak : 1953CriLJ1049 , which are in the following terms;
'When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.'
As the statute has not treated any imaginary state of affairs as real and no legal fiction is provided by the Act, I am not prepared to treat Venkatasiva Rao as having died on the date of the partition suit i.e., 17-7-1956. It is unnecessary for me to decide whether the observations of Sobba Rao, J. (as he then was) in : AIR1954Mad576 (FB), viz. if she divides herself from the other members of the family during her life time, on her demise the succession should be traced to her husband on the basis that the property was his separate property, are obiter and are not correct.
8. Sri K. B. Krishnamurthi, the learned Advocate for the respondent, drew my attention to a recent Full Bench decision of the Madras High Court in Alamemu Animal v. Chellammal, : AIR1959Mad100 (F. B.), wherein a different view was expressed and the observations of Subba Rao J. (as he then was) were held obiter.
9. I am fortified in my view by the decision in Kuppathammal v. Sakthi, : AIR1957Mad695 . Rajagopala Ayyangar, J. expressed the view that under the provisions of the Hindu Women's Rights to Property Act, the rights conferred on the widow are not inchoate and imperfect till a claim for partition is made. He held that the rights come into existence on the date of the death and that the repeal of the provisions of the Act by Hindu Succession Act did not in any way affect the rights conferred under the Hindu Women's Rights to Property Act. The learned Judge however did not consider the effect of Section 14 of the Hindu Succession Act and determine whether the widow obtains an absolute interest or not in the property which devolved on her under the Hindu Women's Rights to Property Act.
10. The identical question was decided by the Patna High Court in Lateshwar Jha v. Mt. Uma Ojhain, : AIR1958Pat502 and the same view was taken.
11. The next question that arises for decision is as to the effect of Section 14 of the Hindu Succession Act. Sub-section (1) of Section 14 is in the following terms:
'Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation; In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.' The argument of Sri T. Ramachandra Rao was that under Section 31 of the Act, the Hindu Law of Inheritance (Amendment) Act, 1929 and the Hindu Women's Rights to Property Act, 1937 were repealed and that the terms of Section 8 apply to the facts of the case on the footing that Venkatasiva Rao must be deemed to have died on the date of the partition suit. I am not inclined to accept this contention.
Prior to the passing of the Hindu Succession Act, the interest of Venkatasiva Rao had devolved on his widow, the 1st defendant, and it is property possessed by a Hindu female within the meaning of Section 14 of the Hindu Succession Act. In G. T. M. Kothuruswami v. Setra Veerayya : AIR1959SC577 , Imam, J., delivering the judgment of the Supreme Court, held that the word 'possessed' in Section 14 is used in a broad sense and 'in the context means that state of owning or having in one's hand or power'.
The observations of Mookherjee, J. in Gostha Beliari v. Haridas Sumantra, (S) : AIR1957Cal557 were approved. The observations quoted with approval are as follows: 'The opening words in 'property possessed by a female Hindu' obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplated the female's possession when the Act came into force. The possession might have been either actual or constructive or in any form recognised by law but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word 'possession' in its widest connotation, when the Act came into force, the section would not apply.'
12. The mere fact that the widow did not claim partition does not mean that she was not in joint possession of her husband's interest along with the surviving coparceners. Sri T. Ramachandra Rao laid great stress on the word 'acquired' in the clause 'whether acquired before or after the commencement of this Act'. According to his argument, the widow did not acquire an interest til! she effected a partition. I do not think that this argument has any force inasmuch as the word 'acquired' means according to the Oxford Dictionary 'come into possession of; or gain by oneself'.
As soon as her husband died and as soon as his interest devolved on her, it must be held that she had acquired an interest in the property. By a claim for partition, she merely works out that right. The explanation is also wide enough and the words 'in any other manner whatsoever' are of wide import. On an interpretation of Section 14(1) of the Hindu Succession Act, a similar view was taken by the Patna High Court in : AIR1958Pat502 .
I am therefore clear on the facts of the case that the widow, upon whom half the interest in the plaint schedule property devolved as on the date of death of Venkatasiva Rao, i.e., 7-6-1956, has become an absolute owner under the terms of section 14(1) of the Hindu Succession Act. I confirm the conclusion of the Subordinate Judge and hold that the plaintiff-appellant is entitled only to a half share and the 1st defendant is entitled to the other half share absolutely.
13. It was next contended that the learned Subordinate Judge erred in decreeing a share in all the moveables mentioned in schedule D forming the subject matter of the appeal. The learned Subordinate Judge accepted the oral evidence of D. W. 1and held that she was entitled to a share in those moveables. Having perused the evidence of D-W.1 I see no reason to come to a different conclusion.
14. Sri K. B. Krishnamurthi, the learned Advocate for the respondent, contended that there was a cash of Rs. 18,000/- left by Venkatasiva Rao at the time of his death and that his client is entitled to a half share thereof from the appellant. In the written statement, it was admitted by the 1st defendant that she was in actual management of the estate. That implies that the plaintiff had not obtained possession of the cash. It is also significant to note that after the death of the husband she did not issue a notice to the appellant alleging that he had removed the cash or that she is entitled to a share therein.
Reliance was placed upon an admission in the evidence of P. W. 1 that his father had collected before his death about Rs. 15,000/- from a Marwadi. That statement has to be read with the plaintiff's statement in the examination-in-chief that his father had no cash by the time of his death. Even assuming that he had cash before the time of his death, it does not clearly appear from the evidence that the plaintiff and obtained possession of that cash. In the circumstances, I overrule the contention of the respondent that she is entitled to claim 8 share in cash from the appellant.
15. As regards the stridhana jewels, I am inclined to agree with the Subordinate Judge that the stridhanam jewels which belonged to her must have been taken away by the 1st defendant. The plaintiff is not bound to account for those jewels or the value thereof.
16. The direction as to costs given by the court below was entirely in its discretion and I am not inclined to interfere.
17. In the result, both the appeal and the memorandum of cross-objections are dismissed with costs.
18. Before concluding the judgment, I wish to express my deep appreciation of the able arguments addressed by both Sri T. Ramachandra Rao, the learned Advocate for the appellant and Sri K. B. Krishanirmurthi, the learned Advocate for the respondent.