Satvanarayana Raju, J.,
1. These appeals arise out of the judgment and decree of the Subordinate Judge's Court, Gudi-vada, in O. S. No. 160 of 1951. That was a suit for partition and separate possession of the plaintiff's half share in the immoveable properties described in Schedules A and B appended to the plaint.
2. The plaintiffs husband Siva Rao, and the defendant are the sons of one Venkatakrishnayya. The plaintiff was married to Sivarao on the 15th June, 1949, and shortly thereafter her marriage was consummated, but ill-luck would have it, Sivarao died on the 4th April, 1950. Her father-in-law, predeceased her husband, with the result that the defendant is the sole surviving member of the coparcenary.
On the basis of the right conferred by the Hindu Women's Rights to Property Act, whose operation was subsequently extended to agricultural properties by means of an Amending Act passed by the Madras Legislature, the plaintiff claims that she is entitled to have a partition of the family properties, both immoveable and move-able, into two equal shares and for recovery of one such share. According to her, the family owns the immoveable properties described in the plaint A Schedule and moveables described in the B Schedule besides outstandings and cash to the tune of Rs. 75,000/-.
3. It was conceded by the defendant that, all the items except item 8, of the plaint A Schedule were family properties in which the plaintiff was entitled to a half share. With regard to item 8, the lower Court held that it was not part of the family estate; and there is now no appeal every with regard to this item. The decree granted by the lower Court in favour of the plaintiff with regard to her half share in Schedule A is thus no longer in dispute.
4. With regard to the moveable properties, the defendant denied the existence of the items specified in the plaint B Schedule. He appended to his written statement Schedule A which according to him, is the correct Schedule of the items of moveables belonging to the family. The lower Court found that the Schedule annexed ,to the written statement was correct and both the parties are content with that finding.
5. There remains the question as to whether the outstanding and cash were Rs. 75,000/- as claimed by the plaintiff and Rs. 17,000/- as admitted by the defendant. The lower court found that the plaintiff failed to establish her case that the outstanding and cash at the time of her husband's death amounted to Rs. 75,000/- and that the total outstandings and cash were as stated by the defendant.
Pursuant to its findings, the lower Court passed a preliminary decree declaring the plaintiff's right to a half share in the immoveable properties, described in Schedule A, appended to the plaint, except item 8, in the moveable properties described in Schedule A annexed to the written statement as also the money which had come into the hands of the defendant and directed that a half share therein be partitioned and delivered to her.
In the actual decree passed by the lower Court a slight error has crept in and we shall presently refer to it. Against the said preliminary decree, the defendant has, preferred Appeal No. 2 of 1955, and to the extent to which she is dissatisfied with the decree of the lower Court, the plaintiff has preferred Appeal No. 177 of 1955.
6. In the appeal preferred by the defendant, some of the directions contained in the preliminary decree have been objected to and it would be convenient to defer consideration of these objections till after the disposal of the contentions raised by the plaintiff in her appeal,
7. The substantial contention raised in Appeal No. 177 of 1955 is that the family outstandings and cash must be much more than what they were admitted to be by the defendant. This contention is based on certain documents produced by the plaintiff which are Exs. A-4 to A-10. They range from 1945 to 1950. Admittedly the family is possessed of Ac. 12-14 cents of land. Part of it was cultivated during the period covered by Exs. A-4 to A-9 with sugarcane.
According to the plaintiff, the extent of land mentioned in these documents, which are entries in the books of account maintained by the K. P. C. Ltd., Vuyyur, represents the area cultivated by the family with sugarcane crop in' each of the years from 1945-46 to 1949-50. P. W- 2, a clerk of the Vuyyur Sugar Factory, has been examined to prove these documents. Except the period covered by Ex. A-9 the supplier during all the earlier years was shown as Parchuri Venkatakrishnayya, the father of the defendant, and certain amounts representing the price paid for the sugarcane supplied by the individual are found in the entries. These documents show that a good part of the lands, of which the family was possessed, was Cultivated with sugarcane during the years 1945 to 1950.
8. As against these documents, the defendant has filed Exs. B-19 to B-26, which are the Adan-gals of Kadavakollu and Vuyyur. These Adangals relate to faslis 1356 to 1359. They practically cover the entire period for which the plaintiff has produced Exs. A-4 to A-9, that is, 1945-46 to 1949-50. These Adangal accounts, as is well known, contain a record of the cultivation extents of various varieties of crop and if they are to be accepted, they show that a much smaller extent than what is shown in Exs. A-4 to A-9 was really cultivated with sugarcane crop.
The defendant deposed that all the sugar-cane sold by his father to the factory during the relevant years was not that of the family. His evidence was corroborated in a large measure by the Adangal extracts produced by him which show that in the years 1946, 1947, 1948 and 1949, sugar-cane was grown by the family of the defendant on extents measuring respectively Ac. 2-0, Ac. 2-0, Ac. 0-45 cent and AC. 7-0 only.
It is no doubt true that a permit has to be obtained for the cultivation of particular areas with sugarcane but the cultivator might actually grow sugarcane on a larger or a lesser extent. The fact that particular areas are mentioned in the permits, does not afford conclusive proof that those areas alone were cultivated with sugarcane. That apart, the Adangal accounts furnish indubitable proof of the extents actually cultivated with sugarcane. We are not, therefore, prepared to hold that the family was in receipt of all the amounts mentioned in Ex, A-4 to A-9.
9. Assuming, however, that the plaintiff is right in her contention that those amounts were actually realised by the family from the sugarcane; sold to the factory, the question still remains is to whether the defendant is liable to render an account of those realisations. It is necessary to note that those amounts in any Case represent only the gross realisations; they do not represent the net income of the family. As is well known, sugar-cane crop needs intensive cultivation requiring large investment in the shape of Chemical manures and other expenses.
The witnesses examined in the case have given various estimates of these expenses. On the side of the plaintiff every attempt was made to minimise them while the defendant and his witnesses endeavoured to show that the gross income would be Rs. 1,400/- out of which a sum of Rs. 1000/- would he spent for cultivation expenses, leaving a net income of Rs. 400/- only per acre. Then there are expenses like the water cess, other taxes, the cost of collecting the cane and its conveyance to the factory,
Apart from the amounts mentioned in Exs. A-4 to A-9 not furnishing a fair Criterion for the income of the family, there is the significant fact that these documents relate to a period when the defendant's father was alive. Admittedly the defendant's father was managing the family affairs and it was only after his death that the defendant came into the saddle. Therefore, there is no question of the defendant being Called upon to render an account of the income of the family at a time when he was not in management, assuming that otherwise the plaintiff was entitled to it.
As pointed out in Mulla's Hindu Law, 12th Edition (at page 477), 'No coparcener is entitled to call upon the manager to account for his past dealings with the joint family property, unless he establishes fraud, misappropriation or improper conversion'. There was no averment in the plaint that the defendant was guilty of fraud, misappropriation or improper conversion. There was no evidence either. The plaintiff did not go into the witness box. The plaintiffs father alone was examined.
Nowhere in his evidence is there any suggestion of any of the circumstances which would entitle the plaintiff to ask the defendant to render an account. Faced with this difficulty, the learned counsel for the plaintiff has submitted that he was relying upon these documents only to show that the family was in receipt of a large income every year and the fact that the defendant had admitted only a much lesser amount as the income of the family, on the basis of which the lower Court eventually gave a decree, was suggestive of misappropriation On the defendant's part.
We are unable to draw any such inference. What all the defendant's family was possessed of was an extent of about 12 acres, and one cannot by normal standards say that the family was in great affluence. It is true that a part of their lands was cultivated with sugarcane. We have no evidence as to the relative fertility or yield on the other lands and there was no attempt made by the plaintiff to prove that all the lands were highly productive.
There is no evidence with regard to the yearly income on those lands, with the result that we are left in a state of surmise and conjecture. In any view it was for the plaintiff to plead and establish by evidence of an acceptable nature that the family income during the years when the defendant was in management, was such as to leave a sizable surplus after defraying the costs of Cultivation, the maintenance of the family, the payment of taxes and other incidental expenditure.
There was no such evidence and we are therefore unable to agree that the circumstances of the family were such as to leave a large surplus. It is also to be remembered that the defendant's father died in March, 1950, and the suit itself was filed on the 11th July, 1951. There was barely an interval of one year and three months during which the defendant was in management of the family properties. In the absence of pleading and proof, it is impossible to accept the plaintiff's case that the family had cash and outstandings to the tune of Rs. 75000/-.
In addition to the list of outstandings given by the defendant, which were due by the date of the plaintiffs' husband's death, the plaintiff's father, asserted, as P. W. 1, that the family had other outstandings aggregating to about Rs. 17,000/-. None of the debtors referred to by the plaintiffs father was called to give evidence and this omission was sought to be explained by saying that none of them would come as a witness on the plaintiff's side. There is no suggestion that they were summoned but that they were unwilling to give evidence.
10. It is then argued that the plaintiff barely lived with her husband's family for five or six months which was too inadequate a period for her to acquaint herself with the affairs of the family; that her father could not have known the family affairs better; and that therefore the defendant being the person who alone could have had knowledge of the affairs of the family, was under a duty to place the Correct information before the Court. Normally this would be so.
The defendant stated that he was maintaining accounts of the family income and expenditure ever since the date of his father's death, but it is not the plaintiffs case that Venkatakrishnayya (the father) himself was maintaining such accounts and that the defendant had suppressed them. The defendant in any view was not under a duly to maintain an account of the family income during his father's life-time when he was not the family manager. Though the defendant had stated that he was maintaining accounts, he was not even asked to produce them.
11. Sri Venkatarama Sastri has then submitted that during the life-time of Sivarao, two sums of Rs. 5000/- each were deposited in the name of the brothers in the Postal Savings Bank account and that these two sums have not been accounted for. The defendant explained that the said amounts belonged to his senior paternal uncle and that he got them deposited in the post office in their names, that those amounts were subsequently withdrawn from the post office and returned to the paternal uncle. It is true that there is nothing in writing to show that the money belonged to the paternal uncle; equally there is nothing to show that the money belonged to the family.
The money was in deposit during the year 1948, and whether the deposit was for a period of one, year or for two years was in dispute. The defendant was positive that the amount was deposited for a period of one year in 1948 and there was no evidence contra. The fact that the amount was deposited in the name of the defendant and his deceased brother in the year 1948 cannot in any view of the matter fasten the defendant with liability to render an account for these amounts.
12. It is then urged by the learned counsel for the plaintiff that the defendant had been denying the payment of Rs. 19,000/- towards his brother's katnam but now that it has been found by the trial Court -- which finding has been accepted by us --that this amount was really paid by the plaintiff's father to the defendant, it must be shown how this amount was dealt with. In any view, it was stated that this amount should be added on to the out-standings disclosed or admitted by the defendant.
The evidence of P. W- 2 is to the effect that this amount, though received by the defendant at the time of the marriage, was handed over to his father as soon as the bridegroom's party reached his native village of Pottapadu. It is not the plaintiff's case that the defendant appropriated for himself or dealt with the whole or any part of this amount for his separate purposes. In the absence of any proof that the defendant had utilised this money for his own purposes, there can be no question of the inclusion of this amount in the outstandings of the family in which the plaintiff is entitled to a share. We are, therefore, unable to accede to this contention.
13. At the stage, it would be convenient to consider the objections raised by the defendant with regard to the directions contained in the decree of the lower Court. It is argued by the learned Advocate-General that the direction in paragraph 4 of the decree that the defendant should render 'an account to plaintiff in respect of her half share of the part payments realised by him from the debtors of the family subsequent to her husband's death', is opposed to law and that the liability to render an account should, be as from the date of the plaintiff's notice demanding partition. On the other hand, Sri Venkatarama Sastri has endeavoured to show that this direction is in consonance with the provisions of Section 3 (2) of the Hindu Women's Rights to Property Act.
14. On these contentions, the question would be: Is the interest which the widow takes on her husband's death under Section 3 (2) the share to which he was entitled at his death, or is it the share to which she would be entitled if she, standing in the shoes of her husband, was treated as the holder of an undivided coparcener's interest at the time of the partition? This question involves the determination of the true scope and effect of Section 3 of the Hindu, Women's Rights to Property Act.
The Act came into force on the 14th April, 1937. As some difficulties were felt in the interpretation of the Act, it was amended on 8th April, 1938, by Act 11 of 1938. The Amending Act was made retroactive and operated from the date or the main enactment. Its validity, however, was questioned and the Federal Court held, in Umayal Achi v. Lakshmi Achi, 1945-1 Mad LJ 108 : (AIR 1945 FC 25) that the Act did not operate to regulate succession to agricultural lands in the Governor's Province and that the word 'property' in Section 3 did not include agricultural lands.
Legislation was thereafter passed in many provinces extending the operation of the Central Act to succession to agricultural lands with the result that the three female heirs mentioned in the Act could claim rights under the Act also in case of such lands. The Central Act was amended in Madras by the Madras Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1947.
15. Section 3 (2) of the Act in so far as it is material for the purpose of the present discussion reads:-
'When a Hindu governed by any school ol Hindu Law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu Joint family property, his widow shall, subject to the provisions of subsection (3), have in the property the same interest as he himself had.'
16. Stress has been laid by Sri Venkatarama Sastri on the words 'at the time of his death' as bringing about the result that the interest which the widow takes on her husband's death under Section 3(2) would be the share to which he was entitled at his death; and he has relied upon certain obserrations in the Full Bench decision of the Madras High Court in Parappa v. Nagamma, : AIR1954Mad576 as lending support to his contention.
In a recent decision of this Court Lakshmiperumallu v. Krishnavenamma, 1959 Andh LT 318 a Divisional Bench (of which one of us was a member) construed the scope of the above provisions. There it was held that the right to which a widow was entitled should be determined as on the date of her demand for partition for, until a partition was demanded, it was not possible to predicate the share to which she would be entitled under Section 3. On a careful study of the judgment of the Full Bench, we find that nothing contained therein runs counter to the above conclusion.
17. Now, it may be remembered that the reference to the Full Bench in : AIR1954Mad576 was necessitated by reason of supposed conflict between the two cases, Subba Naicker v. Nallammal, : AIR1950Mad192 and Chimnah v. Sivagami Achi, SLR (1945) Mad 402 : (AIR 1945 Mad 21). In the later case Sir Lionel Leach, C. J. and Shahbuddin, J., held that a widow under the Act succeeds to her husband's fluctuating interest in the joint family property and therefore her share should be worked out as on the date when she filed the suit for partition. At p. 404 of (1LR Mad) : (at p. 22 of AIR) the Learned Chief Justice observed :-
'A coparcener's interest is not a 6xed interest. It is subject to alteration. For example, it is affected by the death of a coparcener, or by the adoption of a son by a coparcener ........ The section does not give the plaintiff any greater rights than those possessed by her husband, and when she sought partition the joint family had been increased by the adoption of a son by the head of it.'
In : AIR1950Mad192 a Division Bench consisting of Satyanarayana Rao and Viswanatha Sastri, JJ., construed the provisions of Section 3 (2). There a coparcener died in June, 1942. His widow instituted a suit against her husband's brother for partition and separate possession of a half share in the family properties basing her claim on the rights conferred upon her by the Hindu Women's Rights to Property Act, 1937. The properties left by the deceased were agricultural lands. The question arose whether she would be entitled to share the produce derived from the lands after her husband's death. It was held that she was not entitled to a share either in the agricultural lands or the produce therefrom. The learned Judges observed:
'The learned Subordinate Judge decreed a share in these items on the ground that the rights to property should be determined as on the date on which the plaintiff claimed a share by instituting the present suit for partition of the items and not as on the date of the death-of her husband. Under the Act, as would be seen from the language of section 3(2), the right is Created in favour of the widow of a deceased coparcener in the property governed by the Act, her interest being the same as that of her husband. As it has now been finally settled by the Federal Court that the Act does not apply to agricultural land in the Governors,' Provinces, it must be taken that when Krishnaswami died in June, 1942, his interest in the agricultural land survived to the other coparcener, namely, the first defendant and that thereafter he became the sole and exclusive owner of the agricultural lands. The produce of the lands thereafter belongs exclusively to the 6rst defendant. If on the date of the death of her husband the plaintiff had acquired no interest in the agricultural lands by virtue of the provisions of the Act, it is difficult to see how she could claim a share in the produce of the lands which upon the death of her husband became the sole and exclusive property of the first defendant.'
At p. 538 (of Mad LJ) ; (at p. 193 of AIR) it was observed.-
'On the plain language of Section 3 of the Act we have no hesitation in holding that the rights should be determined whether claimed by succession or survivorship as on the date of the death of the death of the husband of the plaintiff and not on the date of the partition suit.'
18. Adverting to the above decision, the Full Bench pointed out as follows:-
'They (Satyanarayana Rao and Viswanatha Sastri, JJ.) did not consider or purport to decide, that in regard to interest in the non-agricultural lands devolving on the widow, the share of the widow should be worked out as on the date of her husband's death. This decision is a clear authority for the position that on the death of the husband the agricultural properties go by survivorship to other members of the joint Hindu family and the husband's interest in the non-agricultural property devolves upon his widow. I do not see any conflict between this judgment and the judgments wherein it was held that the share of 'the widow should be worked out and the properties of the family ascertained as on the date when she claims her share.'
The learned Judges of the Full Bench further clarified the position in law in the following passage at p. 257 (of Mad LJ) : (at p. 581 of AIR):-
Indeed if the argument of the learned counsel be accepted it would enable scheming members of a joint family to circumvent the provisions of the Act altogether. To illustrate, if a person died having an interest in non-agricultural property, the other members of the joint Hindu family by converting the same into agricultural property will be enabled to contend that at the time the share is demanded the entire property of the joint family is agricultural land and therefore she is not entitled to a share. Such a result could not have been contemplated by the legislature. I would therefore hold that a widow under the Act can claim a share in the interest of her deceased husband in the non' agricultural properties owned and possessed by the family at the time of his death and also in the accretions arising therefrom, irrespective of the character of the accretions. So too, she will not be entitled to a share in the interests of her husband in agricultural property though at the time she claims a share the agricultural lands are converted into non-agricultural property or that the accretions from the agricultural property are in the shape of n on-agricultural property. The two devolutions are distinct. The said position is not inconsistent with the other principle, recognised by decided cases for at the time the suit is filed for partition, the interest of the husband in the non-agricultural property and the accretions therefrom would be ascertained, having regard to the circumstances obtaining at that time. I therefore hold that the decision in : AIR1950Mad192 has been rightly decided and there is no conflict between that decision and any other decisions cited before us.'
The Full Bench finally reached the conclusion that there was no conflict between the decision in : AIR1950Mad192 and the previous decisions wherein it was held that the snare of a widow be worked out and the properties of the family ascertained as on the date when the widow claimed her share. The learned Judges of the Full Bench summarised their conclusions at page 256 (of Mad LJ) : (at p. 580 of AIR) thus:-
'There are two devolutions, as it were, in respect of the interest of the deceased husband in the joint family property. So far as the interest in agricultural property is concerned, the law of survivorship would continue to govern the right of succession. But in respect of non-agricultural property the provisions of the Act would apply. Thereafter the courses of devolution of the two kinds of property would be different, the one governed by the Hindu Law and the other by the provisions of the Act. If so, the widow cannot have obviously any right to claim a share under the provisions of the Act in respect of agricultural property, though her pre-existing right under general Hindu Law to claim maintenance is preserved.'
19. Now the acquisition by the widow of the same interest as her deceased husband had in the joint family property does not of itself disrupt the Mitakshara joint family and the widow continues as before to be a member of the joint family. Her rights are augmented but there is no immediate severance of the joint family. She does not by operation of the Act become a coparcener. She becomes entitled to the undivided interest of her deceased husband and takes the 'same interest' as her husband and not the 'same right' as her husband. She may or may not choose to demand partition.
Therefore where she does not enforce partition and the joint family continues as before without any severance of the joint status the incidents of the coparcenary continue to apply to all the members including the widow with this reservation that her existence suspends the rule of survivorship. Having. regard to her position as a member of a joint family, and to the object of the Act and to the words 'the same interest as he himself had', the widow cannot be deemed to be in a better position than her husband if he had lived.
20. The Act of 1937, as interpreted by the Federal Court, applied only to non-agricultural property. The Madras Amendment Act of 1947 extended its operation to agricultural property as well with the result that the distinction between agricultural and non-agricultural property ceased to exist and her husband's interest in properties of either description devolved On the widow. Even after the extension to agricultural property by the Amendment Act, the interest devolving on the widow was only a limited estate.
The Hindu Succession Act, 1956, has now conferred full heritable capacity on the female heir and Section 14, which provides that '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', has dispensed with the limitations on the powers of the widow to hold and transmit property.
The explanation to Section 14 has defined the expression 'property' as including both moveable and immoveable 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 or by her skill or exertion, or by purchase Or by prescription or in any other manner whatsoever, and also any such properly held by her as stridhana immediately before the commencement of the Act. Therefore the limited interest acquired by the plaintiff under the preexisting Acts has been enlarged to an absolute estate. By virtue of the provisions contained in Section 4, the Hindu Succession Act has been given an over-riding effect, which is expressed as follows :-
'Save as otherwise expressly provided in this Act
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in. force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act, shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.'
21. Conformably to the provisions of the Hindu Succession Act, clause 7 of the decree must stand deleted. The liability to account embodied in clause 4 of the decree should be from the 21st October, 1950, the date of Ex. A-11, that is, the assets of the family as they existed on that date must be ascertained and tie plaintiff should be given a decree for her half share therein together with the profits realised by the defendant from the lands from the date of notice and during the pendency of the suit. Clause 4 of the decree shall be suitably modified by giving effect to the above conclusion; that is, the defendant's liability to render an account to the plaintiff should be as from the date of the plaintiff's notice demanding partition.
22. Objection has also been taken to the direction contained in clause 3, viz. 'that the commissioner do allot the debts evidenced by Exs. B-2. B-8, B-10 and B-12 to the share of the defendant.' The plaintiff is entitled to a partition of the out-standings as they exist and the direction that the debts mentioned above should be exclusively allotted to the share of the defendant is wholly unjustifiable. Assuming that the contention of the plaintiff that those debts are bad debts is well founded, even then she is entitled to a partition of the debts due to the family irrespective of the question as to whether the evidence that these debts can in no sense be classified as 'bad debts'. The direction contained in clause 3 shall stand deleted.
23. Sri Venkatarama Sastvi rightly takes objection to the observation of the learned trial Judge in paragraph 13 that the outs tan dings due to the family are only those evidenced by the promissory notes Exs. B-8 to B-18. It was admitted by the defendant in his written statement that the outstandings amounted to Rs. 17,000/-. Admittedly the debts evidenced by Exs. B-2 to B-18 are much less and there is no warrant for the conclusion in paragraph 13 of the judgment that the outstandings due to the family are only those evidenced by the above promissory notes. Though this observation occurs in the judgment, the direction given in the decree is properly worded. Only the direction in the judgment should be so amended as to provide that the plaintiff shall be entitled to a half share in the outstandings due to the family as admitted by the defendant in his written statement.
24. There is another minor matter to which our attention has been drawn. The learned trial Judge seems to have directed the defendant to render an account of the realisations from the sugarcane crop without making specific mention of the income from the other lands. The liability on the part of the defendant to account should be in respect of all the lands, and there is no reason for restricting it to the sugarcane crop alone. An appropriate direction shall be embodied to that effect in clause 4 of the decree.
25. Subject to the above modification, both the appeals shall stand dismissed with costs.