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Dhanam Alias Dhanalakshmi Ammal and anr. Vs. Varadarajan - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberAppeal No. 732 of 1948
Judge
Reported inAIR1953Mad176; (1952)2MLJ176
ActsMadras Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1947; Hindu Women's Right to Property Act, 1937 - Sections 3
AppellantDhanam Alias Dhanalakshmi Ammal and anr.
RespondentVaradarajan
Appellant AdvocateG.R. Jagadeesa Iyer, Adv.
Respondent AdvocateS. Thiagaraja Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredKotayya v. Annapurnamma
Excerpt:
.....right to property (extension to agricultural land) act, 1947 - widow's claim for equal share in deceased husband's property - properties in question were agricultural lands - widow's right to claim right in agricultural lands not came into force at time of death of her husband - trial judge right in refusing to allow partition of leasehold and mortgage interest in agricultural lands. - - as madras act 26 of 1947 which enables the widows to claim their rights in agricultural lands as well had not come into force, when srinivasa mudaliar died and when this suit was filed, in accordance with the decisions of the supreme court -in re a special reference under section 213 of the government of india act, 1935',1941 f. 4 schedule as well as items 1 to 4 in the d schedule. 2 schedule..........-- 'veerayamma v. venkanna', 1951 1 m. l. j. 364. in that case the learned judge held that since a mortgage debt apart from the security can be transferred, a suit by a hindu widow for a share in a mortgage debt under the hindu women's rights to property act, before it xvas amended by madras act 26 of 1947 is maintainable. the learned judge referred to the decisions in --imperial bank of india v. bengal national bank', 59 cal 377 p. c. and -- 'fanny skinner v. bank of upper india'. 57 all 314 p. c. in those decisions the privy council has held that apart from the security the debt as such can be transferred. the attention of the learned judge was not invited to the two bench decisions of this court referred to. it seems to us that even if it is possible to consider the debt as.....
Judgment:

Govinda Menon, J.

1. The plaintiffs, who were the 2nd and 3rd wives of Pr. Srinivasa Mudaliar, who died on 15-12-1943, filed O. S. No. 37 of 1944 on the file of the Subordinate Judge's Court, Velloro, for partition and recovery of possession of their share of the properties left by the deceased Srinivasa Mudaliar. The suit was based on the ground that according to Act 18 of 1937, the Hindu Women's Right to Property Act, the widows are entitled to a share of the properties of the deceased husband in equal rights with those of any sons left behind by the deceased. As Madras Act 26 of 1947 which enables the widows to claim their rights in agricultural lands as well had not come into force, when Srinivasa Mudaliar died and when this suit was filed, in accordance with the decisions of the Supreme Court -- 'In Re a Special Reference under Section 213 of the Government of India Act, 1935', 1941 F. C. R. 12 and -- 'Meghraj v. Alla Rakhia', 1942 F. C. R. 52, the plaintiffs are not entitled to claim a share in the agricultural lands as legislation with regard to such lands can be undertaken after the coming into operation of the Government of India Act, 1935, only by the Provincial Legislature. Since Act 17 of 1937 was by the Central Legislature, it cannot affect proprietary rights so far as agricultural lands are concerned. So the lower court had to give a decree to the plaintiffs only with regard to properties other than agricultural lands.

2. But the dispute centred round certain items mentioned in C. 2 and C. 4 schedule as well as items 1 to 4 in the D schedule. C. 2 schedule related to certain mortgages executed in favour of Srinivasa Mudaliar, both simple as well as usufructuary, and the plaintiffs claimed their shares on those mortgages. These mortgages were over agricultural lands. C. 4 schedule related to arrears of rent due to Srinivasa Mudaliar from tenants of agricultural lands let into possession by him. Items 1 to 4 of D schedule related to certain moveables. The learned Subordinate Judge relying upon two decisions of this court in -- 'Kotayya v. Annapurnamma', ILR 1945 Mad 777 and --'Ramaswami v. Murugayyan', ILR 1945 Mad 781. as well as an unreported decision in -- 'A. S. No. 2 of 1944' held that the plaintiffs are not entitled to a share because leases of agricultural lands and mortgages of agricultural lands came within the definition of interest in agricultural property within the meaning of entry 21 in the 7th schedule to the Act and could not be divided. It is against that decree that the plaintiffs have appealed.

3. We are now concerned with such of the items in the C. 2 schedule which relate to leases of agricultural property and mortgages over agricultural property. It is clear from the various exhibits filed in the case that the deceased Srinivasa Mudaliar was a mortgagee; some of the mortgagees were simple and the others usufructuary of some of the properties in the C. 2 schedule. He had also leased out to various tenants properties, the rents of which have been mentioned in C. 4 schedule.

4. In -- 'Kotayya v. Annapurnamma', ILR 1945 Mad 777, a Bench of this court held that Hindu Women's Rights to Property Act, 1937 does not confer upon a widow of a deceased Hindu coparcener any interest in a lease of agricultural lands obtained by the joint family. The same learned Judges held in --'Ramaswami v. Murugayyan', ILR 1945 Mad 781 that the Hindu Women's Rights to Property Act, 1937, does not confer on a Hindu widow any right to or interest in a simple mortgage of agricultural land executed in favour of her husband. To the same effect is the decision in A. S. No. 2 of 1944 where the same learned Judges reaffirmed and reiterated what they had already laid down in the decisions aforesaid. They also referred to the decision of the Federal Court, in -- 'In EC a Special Reference under Section 213 of the Government of India Act 1935', 1941 F. C. R. 12, and held that the judgment of the Federal Court would apply equally to corporeal and incorporeal rights in land, which meant that a Hindu widow was not entitled to any share in a mortgage on agricultural land.

5. This case comes before us on account of apparent conflict between the decisions above-mentioned and the judgment of our learned brother Subba Rao J. in -- 'Veerayamma v. Venkanna', 1951 1 M. L. J. 364. In that case the learned Judge held that since a mortgage debt apart from the security can be transferred, a suit by a Hindu widow for a share in a mortgage debt under the Hindu Women's Rights to Property Act, before it xvas amended by Madras Act 26 of 1947 is maintainable. The learned Judge referred to the decisions in --Imperial Bank of India v. Bengal National Bank', 59 Cal 377 P. C. and -- 'Fanny Skinner v. Bank of Upper India'. 57 All 314 P. C. In those decisions the Privy Council has held that apart from the security the debt as such can be transferred. The attention of the learned Judge was not invited to the two Bench decisions of this court referred to. It seems to us that even if it is possible to consider the debt as differentiated from the security, still the interest in agricultural lands in the debt does not cease as such.

6. Our attention was also invited to another unreported judgment in -- 'A. S. No. 142 of 1945'. In that case Leach C. J. and Kuppuswami Aiyar J. have held that the Hindu widow was not entitled to a partition of mortgages because the Central Legislature had no power to legislate with regard to agricultural iands. But the learned Judges also held that the widow is entitled to a share of the mortgage debt if it had already been realised before the filing of the suit that is, if the mortgage debt had been collected and the money has come Into the hands of the coparcener as such, then the interest in agricultural lands has already ceased, and such being the case, what was once a mortgage debt having become money in the hands of the coparcener is liable to be divided.

7. Mr. G. R. Jagadisa Aiyar for the aopel-lants also relied upon the decision of the Federal Court in -- 'Mt. Parkasa Kaur v. Mt. Udham Kaur', 1947C 1 M. L. J. 127. We do not find that that decision can be of any help to the appellants, because Zafrullah Khan J. after referring to the decision of the Privy Council in -- 'Imperial Bank of India v. Bengal National Bank'. 59 Cal 377 and quoting a passage from it, says that that decision cannot apply because the property in the case before the Federal Court related to usufructuary mortgage for a term without any personal covenant tor payment.

8. In our opinion the decision of this case depends on the principles enunciated in -- 'Kotayya v. Annapurnamma', ILR 1945 Mad 777 and -- Ramaswami v. Murugayyan', ILR 1945 Mad 781. In one of the cases it has been held that the leasehold interest in agricultural land is not liable to be divided, and in the other that the mortgage interest in agricultural land cannot be divided. Wo find great difficulty in distinguishing that case from the facts of the present case.

9. In -- 'Veerayamma v. Venkanna', 1951 1 M. L. J. 364 Subba Rao J. after referring tothe decisions in -- 'Imperial Bank of India v.Bengal National Bank', 59 Cal 377 and -- 'FannySkinner v. Bank of Upper India Ltd.', 57 All 314 P. C. states as follows:'From the aforesaid two judgments it is clearthat a debt, apart from the security, can betransferred though the debt could be realisedby enforcing the security by the mortgageeor assignee from him. If it is assignable asa debt 'simpliciter' it is equally partible.'The fact that a debt can be assigned apart fromthe security would not make the mortgage anythe less interest in agricultural land. The learned Judge has not stated that the method oftransferring the debt apart from the securitywould take it away from the category of interests in agricultural property. In -- 'MeghRaj v. Allah Rakhia', 1942 F. C. R.52 it has been held that land comprises both corporeal and incorporeal rightsand interests. That is in cases where the agricultural land has been subject to mortgage orleases it would include both corporeal and incorporeal rights and as such would not comewithin the Hindu Women's Rights to PropertyAct. We are therefore of opinion that the learned Subordinate Judge was right in refusing toallow partition of the leasehold and mortgageinterest in agricultural lands in C. 2 schedule tothe plaint.

10. Mr. Jagadisa Aiyar wants us to make it clear that the mortgage over agricultural lands referred to in C. 2 schedule would not comprise items 2, 4, 5, 11, 12, 14. 15 & 16 because the 1st defendant in his written statement has admitted that these mortgages are over non-agricultural lands. This position is not disputed by Mr. Thyagaraja Aiyar for the respondent.

11. With regard to the arrears of rent due from the tenants in agricultural lands in C. 4 schedule the matter stands on a similar footing. As laid down in -- 'Kotayya v. Annapurnamma', ILR 1945 Mad 777 rent due from such lands is interest in agricultural lands and therefore that also has to be excluded from the operation of the Hindu Women's Rights to Property Act.

12. The only other question, that remains to be considered is with regard to items 1 to 4 in D schedule. Mr. G.R. Jagadisa Aiyar contends that these items have been entrusted to one Subramaniam, the guardian of the first defendant, after an inventory had been taken. According to the inventory, it is stated that certain items have been exclusively given over to the plaintiffs and certain other items have been given over to the 1st defendant through his guardian. No mention has been made of those items as to whom these should go and since they have been handed over to the guardian of the 1st defendant, learned counsel contends that they are liable to be partitioned. We do not find any justification for this argument. It is not shown that the movable properties handed over to the guardian are not those which have been specifically and definitely allotted and given over to him. We do not think that there is any point in this contention as well. The appeal therefore fails and is dismissed with costs.


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