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Kallakuri Ranganayakamma and ors. Vs. Kallakuri Raja Rajeswaramma - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 245 of 1959 and Memo of Cross-objections
Judge
Reported inAIR1964AP380
ActsHindu Women's Rights to Property Act, 1937 - Sections 3, 3(1) and 3(2); Hindu Succession Act, 1956 - Sections 14 and 31; General Clauses Act, 1897 - Sections 6
AppellantKallakuri Ranganayakamma and ors.
RespondentKallakuri Raja Rajeswaramma
Appellant AdvocateB.V. Subrahmanyam and ;K.V. Ayyappa Sastry, Advs.
Respondent AdvocateM. Krishna Rao, Adv. for ;D. Narsa Raju, Adv. General, ;Y. Suryanarayana and ;T.V. Narasimha Murty, Advs.
DispositionAppeal dismissed
Excerpt:
family - right to property - section 3 of hindu women's rights to property act, 1937, section 31 of hindu succession act, 1956 and section 6 of general clauses act, 1897 - hindu male died leaving behind considerable properties survived by two widows, sons and daughters - respondent-plaintiff senior widow filed suit for partition and separate possession of her share of property - death occurred prior to enactment of act of 1956 - act of 1937 repealed by section 31 of act of 1956 - no express provision in act of 1956 saving rights conferred by act of 1937 - respondent-plaintiff having vested right share in deceased's property under provisions of act of 1937 - right accrued to respondent-plaintiff on death of husband and is not lost due to non assertion of right before act of 1937 got..........of the repeal of the hindu women's rights to property act (xviii of 1937) by section 31 of the hindu succession act (xxx of 1956) and she could not, therefore, enforce her right of partition, that, in any event, since she had not made a demand for partition prior to the passing of the hindu succession act she could not claim that right after that act was repealed and, that lastly, the compromise embodied in ex. b-1 was a bar to the suit. 6. we shall deal with the three points bearing on the maintainability of the suit seriatim. 7. as substantiating his proposition on the first question, the learned counsel for the appellants relies upon section 31 of the hindu succession act, which recites: 'the hindu taw of inheritance (amendment) act, 1929 (2 of 1929), and the hindu women's rights.....
Judgment:

Chandra Reddy, C.J.

1. This appeal arises out of O. S. No. 48 of 1957 on the file of the Subordinate Judge's Court, Narasapur, brought by defendants 1 to 8 therein.

2. The suit was raised by the senior widow of one Ananda Rao, who died on 18-3-1954, leaving behind him the plaintiff, the first defendant (his junior widow), four sons and three daughters and considerable properties, for partition of the properties left by him into ten shares and for separate possession of one share to her and for accounts and profits.

3. The action was resisted by the defendants, namely, the junior widow of Anandarao and his sons and daughters, inter alia on the pleas that the plaintiff was disentitled to claim the relief of partition for the reason that the statute under which she could claim the right was repealed, that sha had given up all her rights to claim partition under the compromise entered into between herself and her husband in or about the year 1913 and that she was not entitled to a share in item 5, which is a house in Narasapur, acquired with the funds belonging to defandants 1 to 5.

4. The trial Court entered judgment in favour of the plaintiff in regard to partition and separate possession but disallowed the relief of profits prior to the suit, This judgment of the Subordinate Judge is the subject-matter of this appeal and the memorandum of cross-objections.

5. In support of this appeal, it is urged by Sri. B. V. Subrahmanyam, learned counsel for the appellants, that the rights, if any, of the plaintiff were extinguished by reasons of the repeal of the Hindu Women's Rights to Property Act (XVIII of 1937) by Section 31 of the Hindu Succession Act (XXX of 1956) and she could not, therefore, enforce her right of partition, that, in any event, since she had not made a demand for partition prior to the passing of the Hindu Succession Act she could not claim that right after that Act was repealed and, that lastly, the compromise embodied in Ex. B-1 was a bar to the suit.

6. We shall deal with the three points bearing on the maintainability of the suit seriatim.

7. As substantiating his proposition on the first question, the learned counsel for the appellants relies upon Section 31 of the Hindu Succession Act, which recites:

'The Hindu taw of inheritance (Amendment) Act, 1929 (2 of 1929), and the Hindu Women's Rights to Property Act, 1937 (18 of 1937), are hereby repealed.'

8. There is no provision in the Hindu Succession Act saving the rights conferred by the Hindu Women's Rights to Property Act (XVIII of 1937).

9. Indisputably, the Hindu Succession Act does not apply to this case, as Ansndarao died prior to the passing of this Act. The only question, therefore, Is whether the Hants derived b.v his widow under the Hindu Women's Rights to Property Act, 1937 are protected notwithstanding the absence of specific provision in the later Act in that regard.

10. It is in this context that Section 6 of the General Clausas Act comes to the rescue of the plaintiff in this case. That section says (omitting the unnecessary portion)

'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

xxxxx

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;' or

The effect of this Clause 6 is that it preserves the rights which have already been acquired or accrued under the repealed enactment. The Hindu Women's Rights to Property Act had conferred certain rights upon the widow of the last male-holder and such rights are saved bv this clause.

11. The learnad counsel for the appellants urges that clause 6 of the General Clauses Act does not help the widow-respondent, as she had not asserted her right 1o claim partition in the properties of her husband before the coming into force of the Hindu Succession Act and as such no right had accrued to her under that clause. According to the learned counsel, it is only after the assertion of the right to partition that such right could be regarded as having 'aecrifed or acquired' and till then the right being a dormant one It could not be said to have accrued or been acquired. We find it very difficult to accede to this theory. In the case of separata property of the last male-owner, under Section 3 (1) of the Hindu Women's Rights to Property Act, the widow or all the widows of the last male-owner would be entitled to the same share as a son and, in the case of co-parcenary property, she or they would be entitled to the interest of the deceased by reason of Sub-section (2).

12. It is manifest that Section 3 proprio vigors creates the right in the widow and it is not an assertion or demand of it that would clothe her with this right. The demand is only for working out the rights conferred by the statute. The non-assertion or failure to make a demand of such rights would not in any way impair the rights vested in the widow under the repealed enactment. The section does not require an assertion or a demand, before the right vests in her. It is difficult to accept the view sought to be pressed upon us by the learned counsel for the appellants that the rights conferred by the repealed enactmant are inchoate or imperfect which would become perfect or enforceable only on an assertion or a demand being made before the Act is repealed. On the death of the last male-owner, the right to a share In his property had accrued to his widow and that right is not lost by reason of not asserting it before the Act was repealed.

13. This is the view taken by a single Judge of the Madras High Court in Kuppathammal v. Sakthi, AlR 1957 Mad 695. The learned Judge elaborately discussed this point and reached the decision that the repeal effect-ed by Section 31 of the Hindu Succession Act had not in any way destroyed the rights conferred on the widows fay the Hindu Women's Rights to Property Act, 1937.

14. This was followed by a single Judge of this Court in Sankara Rao v. Rajyalakshmamma, : AIR1961AP241 . We, therefore, raject the contention based upon Section 31 of the Hindu Succession Act.

15. This takes us to the point whether this right of the plaintiff Is defeated by clause (8) of tha compromise entered Into between herself and her husband. It may be mentioned here that in 1937 the present plaintiff instituted O. S. No. 49 of 1937 on the file of the Subordinate Judge's Court, Narsapur, for maintenance against her husband and the latter laid an action for restitution of conjugal rights. The two suits ultimaely ended in a compromise. One of the clauses of it, namely, Clause 8. reads as follows :

'The plaintiff shall lead a family life with the 1st defendant and even during that time the plaintiff shall enjoy the lands mentioned in the 1st paragraph supra with the rights given thereby to her; even if for any reason the plaintiff lives separately, the plaintiff shall enjoy the samel with the aforementioned rights in the above manner; the plaintiff shall not at any time !n future claim any reliefs from the 1st defendant 2nd others.'

16. The argument founded upon the last sentence of this clause is that the plaintiff had given up all her rights that existed at that time and also rights that would arise in future. We find it hard to assent to this proposition. First of all, a reference to the terms of the compromise would show that the rights contemplated bv that clause were with reference to the maintenance she had claimed. Surely, that could have no reference to a right that was to arise in future, At that time, the claim to a share under the Hindu Woman's Rights to Property Act, 1937 was a contingent right and there was no question of relinquishing such 3 right. It is only rights that were put up and which were the subject-matter of dispute that could tie relinquished and not rights which are to arise in future. It was observed by Mahajan J. (as he then was) in Chinnathayi v. Pandiya Naicker, : [1952]1SCR241 .

'.....general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed.' Therefore, Clause 8 of Ex. B-1 cannot bear the interpretation that is put upon it. That does not in any way deprive the plaintiff the rights that accrued to her on the death of her husband and which could not have been in the contemplation of parties at the time of the compromise. The argument based on clause 8 is devoid of substance and therefore, has to be repelled.

17. The only controversy that survives is whether the plaintiff is entitled to a share in item 5. The case of the defendant in this behalf was that this property was purchased with the sale proceeds of the first defendant's jewels and dowries of Rs, 8,000/- given to defendants 3 and 4 at the time of their marriages. The case of the defendants in this regard turns on the evidence of D. W. 1, the first defendant's father. He stated that Exhibits B-3 and B4 under which item 5 was purchased are in the names of the then minor defendants 2 to 5 represented by thair mother as guardian and that tha purchase was made with the money realised by the sale of his dauenter's iewals and the money of defendants 3 and 4 received from their parents-in-law. The learned Judge was not prepared to place any reliance on the testimony of this witness for the reason that no mention of the utilisation of the sale-proceeds of the jewels of his daughter in the matter of acquisition of this property was made in the written statement and also for the reason that the witness could not say as to whom the jewels were sold. As regards the version that the dowry amounts belonging to defendants 3 and 4 were utilised for purchasing this item the Subordinate Judge was not inclined to accept it, as there was no proof that any dowry was paid or that any part of it was used for that purpose.

18. Another circumstance taken into considerate by the Subordinate Judge for rejecting the defendants' case in regard to item 5 is that the consideration for Ex. B-3 was not paid at a lime but it was paid in instalments. If really the defendants were in possession if large sums of money representing the sale proceeds the first defendant's jewels and the dowries given to defendants 3 and 4 there was no reason why the consideration of Rs. 16,500/- could not be paid at one lima but was paid in instalments. In this connection, it cannot be overlooked that the family possessed extensive properties nearly 130 acres of land of which 80 acres were wet and they must have yielded substantial income. In the circumstances of the case, there can be little doubt that it was the income of the family properties that constituted the consideration for Exhibits B-3 to B-9, The Subordinate Judge, who had the advantage of watching the demeanour of D. W, 1, did not choose to believe him and we see no reason to differ from him In this regart. Our attention has not been drawn to any other evidence substantiating the case of the defendant on this issue. It follows that the finding of the Subordinate Judge on this aspect of the matter also has to be affirmed. (19) No other question is argued before us.

20. In tha result, the appeal is dismissed with costs.

21. Coming to the memorandum of cross-objections,, the main point argued by Sri Krishna Rao, learned counsel for the cross-objector, is that the Subordinate Judge ought to have granted a decree to the plaintiff for mes.ie, profits also as the evidence of P. W. 2 discloses that a-demand for partition was made by the plaintiff befora the institution of the suit. We are; not inclined to give weight to this argument. The learned Judge has given cogent reasons for not acting on the testimony of P. W. 2 in this regard and no reasons are adduced by tha learned counsel for the cross-objector as to why we should, disagree with the trial Court on its estimate of p. W. 2's. evidence. We are, therefore, not inclined to accept the memorandum of cross-objections.

22. Sri Krishna Rao wants us to make it clear that the plaintiff would enjoy the properties that were allotted to her share with absolute rights. We do not think that there is any necessity to say so, as the decree states-that the suit was decreed as prayed for. Moreover, it is stated specifically in the judgment, of the trial Court that the plaintiff is entitled to absolute rights in respect of properties in which she has a share by reason-of the provisions of the Hindu Succession Act, (XXX of 1956). There can be little doubt that the rights which, the plaintiff acquired under the Hindu Women's Rights to Property Act, 1937 have been enlarged into absolute rights, by reason of Section 14 of the Hindu Succession Act (XXX. of 1956) and it is these rights that were recognised by the judgment and decree in O. S. No. 48 of 1957.

23. Another matter on which Sri Krishna Rao seeks-clarification is the provision of maintenance to the daughters of Ananda Rao. The Subordinate Judge made provision for marriage expenses of defendants 6 to 8 at tha rate of Rs. 5,000/- (five thousand) for each of them and maintenance at the rate of Rs. 50/- per month each. The learned counsel for the plaintiff wants us to say that this provision would last only so long as the daugrt? ters are unmarried. Surely, there can be no doubt about it. In law, the daughters are not entitled to maintenance after their marriage and It is not necessary to have it incorporated in the decree.

24. With these observations, the memorandum ofcross-objections is dismissed with costs.


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