Chandra Reddy, C.J.
(1) The problem that requires solution in this Letters Patent Appeal is whether the property allotted to the last male owner for his share at a partition with his coparceners falls within the ambit of the Hindu Law of Inheritance (Amendment) Act, 1929 (hereinafter referred to as Act II of 1929).
(2) The facts giving rise to this appeal lie in a short compass and are as follows. The properties in dispute originally belonged to one Davuluri Subbaiah having been allotted to his share in a partition with his brother Nagaiah. Subbaiah died on 16-6-1912 survived by his widow Lingamma and three sisters by name Peramma, Kotamma and Veeramma. After the death of Subbaiah, his widow enjoyed these properties as a limited owner. On her death, the properties were claimed by the adopted sons of Kotamma and Veeramma. As the right of these two persons was resisted by a person claiming to be the adopted son of Lingamma. The adopted son of Veeramma was obliged to file a suit for a decree for partition and allotment of one share to him and another to the adopted son of Kotamma who was impleaded as the 2nd defendant and the person who opposed the claim as 1st defendant.
(3) The suit was contested only by the 1st defendant, inter alia, on the defence that he being the adopted sons of Subbaiah was the real owner of the property. The trial Court while holding that the 1st defendant had not established that he was adopted by Lingamma, dismissed the suit on the grounds that the plaintiff was not adopted during the life time of Veeramma and that Section 2 of the Act II of 1929 was inapplicable to the property of the description involved in this suit.
(4) The lower appellate Court while disagreeing with the finding of the Subordinate Judge that the plaintiff was not adopted by Veeramma, affirmed the decision in agreement with his conclusion as to the applicability of Act II of 1929.
(5) Aggrieved by this decree, the plaintiff brought a second appeal to this Court contending that Act ii of 1929 governed the instant case. Our learned brother, Justice Seshachalapati reversed the decision of the Courts below having reached the conclusion that the property in question fell within the purview of Act II of 1929. It is this view of the learned Judge that is assailed in this appeal filed with his leave.
(6) It is convenient at this stage to turn to the provisions of Act II of 1929, round which the controversy revolves in this appeal. Sub-section (2) of Section 1 of that Act provides:
'(2) It extends to the whole of India, except Part B States, but it applies only to persons who, but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will.'
(7) Among the persons who are enumerated in S. 2 of Act II of 1929 as being entitled to succeed to such property is the sister's son. We are here concerned with the connotation of the expression 'the property of males not held in coparcenary and not disposed of by will.'
(8) What is urged in support of this appeal is that the words 'not held in coparcenary' mean separate property which is synonymous with self-acquired property. The learned advocate bases himself mainly upon Annagouda Nathgouda v. Court of Wards, Satara, 0065/1951 : 1SCR208 , for the first limb of his argument and on Umayal Achi v. Lakshmi Achi, (1945) 1 Mad LJ 108 : (AIR 1925 FC 25) for the second limb thereof.
(9) The observations in 0065/1951 : 1SCR208 which formed the foundation of the first part of the contention are as follows :
'Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regard the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all'.
The Act referred to is the Hindu Law of Inheritance (Amendment) Act, 1929.
(10) We are not persuaded that this statement of law justifies the proposition advanced by the learned counsel for the appellant. The expression 'separate property' is used in antithesis to 'property not held in coparcenary'. Indisputably, what is not coparcenary property could be described as separate property. What then, is the content of the expression 'separate property'? Could it be equated only to self acquisition, and does the decision of (1945) 1 Mad LJ 108 : (AIR 1945 FC 25) vouch the view that is sought to be pressed upon us by the learned counsel for the appellant?
(11) In (1945) 1 Mad LJ 108 : (AIR 1945 FC 25) the last owner of the suit properties, one Arunachalam Chettiar, died leaving behind him his two widows and the widow of his predeceased son. The latter claimed a share on the basis of the first proviso to Section 3 (1) of the Hindu Women's Right to Property Act, 1937, which reads thus :
'Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's of such predeceased son.'
At the time of Arunachalam's death, he was the sole surviving coparcener in the joint family that owned the suit properties. It was decided by the Federal Court that the property held by a person as the sole surviving coparcener of the joint family would not constitute separate property within the connotation of S. 3 (1) of the Hindu Women's Right to Property Act. S. 3 (1) of the above Act which fell to be considered by the Federal Court, postulated :
'When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section (3) , be entitled in respect of property in respect of which he dies intestate to the same share as a son.'
Their Lordships of the Federal Court ruled inter alia that 'separate property' did not include property obtained by the last male holder as his share at a partition of the family property . The reasoning is to be found in the following passage occurring at p. 115 : (of Mad LJ) : (at p. 32 of AIR ).
'In cases governed by the Mitakshara school of Hindu law, the expression 'separate property' has sometimes been used, in a limited sense, to denote what is known as self-acquired property ............................ (See Mulla, 9th edition, paragraph 230). But, judged by the test of power of disposition, two other kinds of property held by Hindu governed by that law, viz. , property obtained as his share at a partition and property held by him as a sole surviving coparcener may, in some measure, resemble self-acquired property, the owner's power of disposition will continue to remain undiminished throughout his life-time, unless he chooses voluntarily to throw it into the joint family stock, whereas in the case of the other two kinds of property, his power of disposition will become qualified and his interest reduced the moment a son is borne to him or the widow of a predeceased coparcener takes a boy in adoption. It would not therefore be right to place these three kinds of property on the same footing merely on the ground that at a particular point of time, the owner may enjoy unrestricted powers of disposition over them. That is why in enumerating the several items constituting 'separate property' in paragraph 230 of his book on Hindu Law, Sir Dinshaw Mulla has taken care to add certain qualifying words in respect of items 6 and 7 (share obtained on partition and property held by sole surviving coparcener). The expression 'separate property' may be the antithesis of three other expressions, viz. , 'ancestral property' , 'coparcenary property' and 'joint family property'. It is necessary to determine in the light of the scheme of the Act, the particular sense in which the expression has been used there'.
We are not satisfied that this passage lends support to the broad rule stated by the learned counsel that the signification of the term 'separate property' is the one suggested by him, i.e. , that it denotes only 'self acquisition.' Far from laying down any universal proposition, Justice Varadachariar, who delivered the leading opinion. makes it clear that the expression 'separate property' is sometimes used in a restricted sense to denote what is known as self-acquired property. That is comprehends other forms of property is clear from this observation of his Lordship.
Further, the Federal Court had to consider the particular sense in which that expression is used 'in the light of the scheme of the Act'. The learned Judge had given a limited meaning to those words having regard to the circumstances indicated in the succeeding paragraph, some of which were that the measure was intended to give better rights to women and that the Act was not a codifying Act or a general amendment of the Hindu Law of Inheritance. It is worthy of note that his Lordship remarked :
'Even under the ordinary Hindu Law, a widow would in certain circumstances have succeeded to the property held by her husband as the last surviving coparcener or as the holder of a share obtained on partition. By themselves, these cases did not call for the interference of the Legislature.'
(12) It is plain from these observations that the property obtained by the last owner in a partition with his coparceners was descendable to his widow, which would not have been the position if the expression 'separate property' is always used in a limited sense of ' self-acquired property'. We are not persuaded that the principle enunciated in (1945) 1 Mad LJ 108 : (AIR 1945 FC 25) which interpreted the Hindu Women's Right to Property Act affords the appellant any assistance.
(13) Subramanian v. Kalyanarama Iyer, : AIR1957Mad456 called in aid by the counsel for the appellant also is not helpful as it belongs to the same category as (1945) 1 Mad LJ 108 : (AIR 1945 F C 25). That too was a case bearing upon Hindu Women's Right to Property Act. Chief Justice Rajamannar, who spoke for the Court, following Umayal Achi's case 1945-1 Mad LJ 108 : (AIR 1945 FC 25) said that property allotted to a last Hindu male owner at a partition with his coparceners was not his separate property within the scope of Section 3 (1) of the Hindu Women's Right to Property Act, as it must be deemed to be an interest within the terms of Section 3 (2) in which a widow could have an interest.
(14) In our considered opinion, the property that falls to the share of a last male owner in a family partition is attracted by Act II of 1929, the only property in which the other members of the joint family have interest. It extends to all forms of property other than that. We are fully supported in this conclusion of ours by passages both in Mulla's 'Principles of Hindu Law' , as also Mayne on 'Hindu Law and Usage'.
(15) In section 34, page 101 of Mulla's 12th edition, it is stated that even if the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession according to the order given in Section 43, and not to his coparceners. Again at page 102, it is said that if the deceased was separate at the time of his death from his coparceners, the whole of his property, however, acquired will pass to his heirs by succession according to the order given in Section 43.
(16) Dealing with a share allotted on partition, this is what is said at page 327 :
'The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property , and if the coparcener dies without leaving male issue, it passes to his heirs by succession'.
The illustration given thereunder is also helpful.
'A and B, two brothers, are members of a joint family. A has a son C. B has no son, but a wife. A and B divide the joint family property. A's share of the property is his separate property as regards B, but it is ancestral as regards his son C. The share of B also is his separate property as regards A, and on B's death without leaving male issue, it will pass to his wife, as his heir. The effect of the partition is to cut off the claims of the dividing members, but the father and his male issue still remain joint.'
(17) It is clear from this that property such as the one involved in this appeal is inherited by the heirs of the last male owner by reason of Act II of 1929, as it is not coparcenary property which would devolve upon coparceners by survivorship. It is such a property that is covered by Act II of 1929. The chief aim of that Act was to give preferential claims to nearer relations of the last male owner. Act II of 1929 could not have intended to limit it only to self-acquisitions, since, as we have already stated, even property obtained at a partition descends to the heirs of the last male owner. It is to be borne in mind that Act II of 1929 is enacted to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate by providing preferential rights to the nearer relations of the last male owner.
(18) The propositions is similarly stated in Mayne on 'Hindu Law and Usage'. This is what is said at page 351 (11th edition).
'All property which is not held in coparcenary is separate property and Hindu Law recognises separate property of individual members of a coparcenary as well as of separate members ................ Property which a man takes at a partition will be his separate property as regards those from whom he has severed but will be ancestral property as regards his own male issue.'
Again at page 584 it is stated :
'The Mitakshara law of inheritance therefore applies exclusively to property which was held in absolute severalty by its last owner.
Such property will include (1) self-acquisitions of the last male owner ; (2) property inherited by him from his collaterals, mother or maternal grandfather ; (3) property which was allotted to him for his share at a partition with his coparceners and (4) property which vested in him exclusively as the last surviving coparcener.'
It is thus clear that the property falling to the share of a male owner governed by the Mithakshara law of inheritance at a family partition and partaking of the character of separate property is covered by Act II of 1929. There is no justification to confine the operation of Act II of 1929 to self-acquired property. Under Hindu Law Succession is not limited to self acquisitions, separate property of the description indicated above being also subject to the law of inheritance.
(19) For these reasons, we are in entire agreement with Justice Seshachalapati, that the Hindu Law of Inheritance (Amendment) Act, II of 1922, applies to the property involved in this litigation and consequently , the plaintiff and the 2nd defendant are entitled to succeed thereto.
(20) In the result, the appeal is dismissed with costs.
(21) Appeal dismissed.