1. This is an appeal against the judgment of our learned brother, Ansari, J., in Second Appeal No. 1247 of 1954. Although the decision of this appeal depends upon a pure question of law, it would be necessary to set out in detail the facts giving rise to this appeal. The dispute is with regard to the properties of one Ramaswamy who was one of the three sons of Periah. Ramaswami died possessed of properties mentioned in plaint schedules A, B and C and 1/3rd share in D schedule lands.
Ramaswami's father had three sons, Ramaswami, Ramiah and Poliah. These three brothers acquired considerable property, movable and innmovable, out of their joint labours. Poliah died leaving behind him his son, Periah. Somewhere about 1937 Ramaswami, his brother, Ramiah and his nephew, Periah (son of Poliah) divided he properties and in the aforesaid partition A to C schedule properties and an undivided 1/3rd share in D schedule property (pasture lands) fell to the share of Ramaswami.
At this time Ramaswami had a son living, Venkataswami, who died 7 or 8 years after. This Venkataswami died intestate leaving behind him his widow the 1st defendant in the case. Ramaswami had besides the son, Venkataswami, a daughter by name Akkamma. Akkamma's sons are the plaintiffs, China Kondayya and the 2nd Defendant, Ravi Kondayya besides a daughter. It is stated that in 1942 Ramaswami executed a settlement deed giving away certain properties in equal moities to his daughter, Akkamma and to his daughter-in-law, Lakshmma the 1st defendant.
It would appear that soon after this 1st defendant viz., Lakshmma, the widow of the pre-deceased son of Ramaswami, filed a suit being O.S. No. 100 of 1944 on the file of the District Munsiff's Court, Kanigiri for partition and separate possession of a half-share both on the basis of the settlement deed referred to above as well as under Act XVIII of 1937. This suit was compromised and the preliminary decree was passed, by which properties covered by the settlement deed were divided into three shares amongst Akkamma (Ramaswami's daughter) the 1st defendant and Ramaswami.
Ramaswami therefore became entitled to a l/3rd in the properties covered by the settlement deed by reason of the compromise effected in O. S. No. 100/44. Akkamma died some time after. Ramaswami filed an application before the District Munsiff, Kanigiri for a final decree pursuant to the preliminary decree passed in O. S. No. 100/44. This was I. A. 1168/48. When the proceedings were pending before the Munsifs Court, Ramaswami died on 14th November, 1949.
The 1st defendant Lakshamma claimed to be entitled to the suit properties as the heir of of Ramaswami by virtue of Act XVIII of 1937 read with the amending Act of 1946. It is stated that Ramaswami just on the day he expired, during the early hours of the morning (for he died late in the day), adopted his daughter's son, China Kondayya. It is this adopted son who has filed the present suit.
The suit for a declaration that he is the adopted son of the late Ramaswami and as such entitled to the properties left by Ramaswami absolutely, and for an injunction restraining Lakshmma, the widow of the pre-deceased son of Ramaswami from interfering with the peaceful possession and enjoyment of certain items of property in the plaint schedule and also for a declaration that the plaintiff and the 2nd defendant, the grandsons of Ramaswami by his daughter, are the nearest heirs to the estate of Ramaswami and as such are absolutely entitled to the same.
Ramaswami's daughter-in-law, Lakshmma is the contesting defendant. The 2nd defendant, that is to say, the natural brother of the plaintiff remained ex parte. The contesting defendant denied the plaintiff's adoption and asserted that the properties were the self-acquisitions of her father-in-law, Ramaswami. She contended that by virtue of Act XVIII of 1937, she was entitled to the suit properties
2.The trial court raised two important issues, firstly as to whether the suit properties were the separate properties of Ramaswami and secondly, whether the plaintiff was his adopted son. Art issue in the alternative also was raised to say that if the plaintiff was not the adopted son, whether the plaintiff and the 2nd defendant were the nearest reversioners to the estate of Ramaswami. The trial court held that the properties were the separate properties of Ramaswami within the meaning of Section 3(1) of Act XVIII of 1937 and therefore the 1st defendant was entitled to he properly. The question of adoption was not pressed.
In the view that the trial court took about the nature of the properties, it held that the 1st defendant was the nearest reveisioner to the estate of the late Ramaswami. In the result the suit was dismissed with costs. On appeal the District Judge reversed the findings of the trial court both on the question as to whether the properties were the separate properties of Ramaswami and whether the 1st defendant was the nearest reversioner to his estate. The court allowed the appeal and decreed the plaintiffs suit declaring the plaintiff and the 2nd defendant to be the nearest reversioners and to be entitled to the plaint schedule properties, A. B. C. and D.
3. The matter was taken up in second appeal before this Court and the learned Judge Ansari J., concurred with the judgment of the lower appellate court and dismissed the appeal and confirmed the decree of the lower appellate court:
4. The only point that was canvassed in this appeal before us was the question about the nature of the properties left by Ramaswami; for it is obvious that if it were not the self-acquisitions of Ramaswami, the appellant herein would not be entitled to the properties as the widow of the pre-deceased son of Ramaswami. The appellant lays claim to the properties by virtue of the Hindu Women's Rights to Property Act, Act XVIII of 1937. This Act was passed to amend the Hindu Law to give better rights to women in respect of property. Section 3(1) of the Act relates to the devolution of property and it reads as follows:--
'3(1). 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 intesate 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:
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 son of such predeceased son;
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(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 an interest in a Hindu Joint family property, his widow, shall subject to the provisions of Sub-section (3) have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends of a single heir or to any property to which the Indian Succession Act, 1923, applies.'
5. Under this provision where a Hindu governed by any school of Hindu Law other than the Dayabhaga school dies intestate leaving separate property, his widow, and if there is more than one widow, all his widows together would be entitled to the share of a son in respect of suck property left by the husband. The proviso to this section says that the widow of a pre-deceased son shall inherit in like manner as a son, if there is no son surviving of such predeceased son. The effect of this proviso is that if there exists the widow of a pre-deceased son, not having a son such widow would inherit in the same manner as a son.
The argument put forward on behalf of the appellant was that the properties left by Ramaswami were his separate properties and as suck the appellant was entitled to them to the exclusion of the plaintiff and the 2nd defendant The question as to what could be regarded as 'separate property' under the Hindu law and for the purpose of the Hindu Women's Rights to Property Act has been dealt with elaborately by a judgment of the Federal Court in the case of Umayal Achi v. Lakshmi Achi, AIR 1945 FC 25, Varadachariar J., who delivered the judgment of the court, observed as follows :
'..... the expression 'separate property' has sometimes been used in a limited sense, to denote what is known as self-acquired property ....But judged by the test of power of disposition, two other kinds of property held by a Hindu governed by that law viz. property obtained as his share at a partition and property held by him as a sole surviving co-parcener may in some measure, resemble self-acquired property. There is however this difference between them, viz., that in the case of self-acquired property, the owner's power of disposition will continue to remain un-diminished through his life-time, unless he chooses voluntarily to throw it into the joint family stock, whereas in the case of other two kinds of property his power of disposition will become qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption.'
According to this observation of the learned Judge it would not be correct to place the three kinds of property on the same footing. Although in each of the categories of the properly the person holding the property has unrestricted powers of disposition over them but in regard to the properties other than self-acquired properties there is always the risk of a son, who may be born later or a boy coming into the family by adoption acquiring a right in such property viz., property obtained as a share at a partition or property in possession as the sole surviving co-parcener.
It may also be observed that the interest that a person possesses in the two categories of property viz., property got at a partition and property possessed as the sole surviving co-parcener, is liable to fluctuate during the life-lime of the owner and after his death. His Lordship had to deal with the question as to whether the property held by one Arunachala as the last surviving co-parcener of a joint family could be regarded as 'separate property within the meaning of Section 3(1) of Act XVIII of 1937' and his Lordship on discussing comparatively the characteristic-; of the different categories of property came to the conclusion that such property could not be regarded as 'separate property' within the meaning of Section 3(1) of Act XVIII of 1937.
This case now governs the position in so far as the definition of 'separate property' is concerned. This case came to be considered by a single Judge of the Madras High Court, Krishnaswamy Nayudu, J, in Subrahmanian v. Kalyanarama Iyer, : AIR1953Mad22 . The learned Judge ruled that in the case of a property obtained by a father as his share at a partition it was his separate property in which his widow was entitled to a share and the learned Judge sought to distinguish the Federal court case of AIR 1945 FC 25 referred to above stating that the decision of the Federal Court was with reference to a case of the nature of the property held by a sole surviving co-parcener and that decision of the Federal Court did not prevent the learned Judge from holding the opinion that property obtained as a share at partition was separate property and he preferred to follow the classification made by Mulla in his treatise, on Hindu Law.
This judgment did not stand but was upset on appeal by a Bench decision of the Madras High Court in Subrahmanian v. Kalyanarama Iyer, : AIR1957Mad456 Chief Justice Rajamannar, who spoke for the court, expressed that they could not agree with the view of Krishnaswamy Nayudu J. when he sought to make a distinction between the case before the Federal Court and that of a case of property got at a partition. They stated that the principle of the Federal Court decision would equally apply to the case of property taken by a member of the joint family at a partition.
The distinction, in our opinion, sought to be made by Krishnaswami Nayudu, J., in the case referred to above is not warranted and justified, as Varadachariar, J., who delivered the leading judgment in Umayal Achi's case, AIR 1945 FC 25 placed property received at a partition on the same footing as property possessed by a person as the sole surviving co-parcener. Therefore on the strength of the Federal Court judgment which has been applied in the aforesaid Madras High Court decision is good law, and we must hold that the law in so far as separate property for the purposes of Act XVIII of 1937 is concerned, is governed by the decision of the Federal Court in Umayal Achi's case, AIR 1945 FC 25 and therefore the property left by Ramaswami could not be regarded as separate property within the meaning of Section 3(1) of Act XVIII of: 1937.
We may also in this connection refer to the decision of the Supreme Court in Anguru Bala v. Debabrata, : 2SCR1125 wherein their Lordships had occasion to refer to the Federal Court case of Umayal Achi, AIR 1945 FC 25 and the propositions laid down by Varadachariar J., were not dissented from. Their Lordships did not express any difference of opinion in so far as those propositions were concerned. In a Full Bench decision of this Court of which both of us were parties (Chandra Reddy C.J. and Srinivasachari J.,) in the ease of Kanteti Sastrulu v. Madupalli Venkateswara Rao, : AIR1959AP232 (FB), we had occasion to advert to the observations of Varadachariar J. in AIR 1945 FC 25 and adopted the reasoning of the learned Judge.
It was argued on behalf of the learned Counsel for the appellant that the categories of separate property mentioned in Mulla's Hindu Law were not exhaustive and this kind of property which was received by Ramaswami by virtue of a settlement deed could be regarded as 'separate Property'. We do not think we can accept his argument in the face of the decisive pronouncement of the Federal Court in Umayal Achi's case, AIR 1945 FC 25.
6. The result is that the judgment of the learned Judge will stand and this appeal is dismissed. The respondent will be entitled to his costs in this court and in the courts below, but not in the second appeal.