Ganapathia Pillai, J.
1. The appellant in this case was the second wife and now widow of one Doraiswami Reddiar, who died on 10-8-1951, aged about 68 years. By his first wife, Kamalakshi Ammal who died in 1936, Doraiswami Reddiar has a son called Sithapathi Reddiar, who is the respondent in this appeal. The appellant was married to Duraiswami in 1938. By O. S. No. 33 of 1945, which was a suit for partition instituted by Sithapathi, the respondent, there was a division of all the family properties between Doraiswami and his only son, Sithapathi.
It is admitted that though only a preliminary decree for partition was passed in that case, by agreement of parties all the family properties were divided and since 1945 the father Doraiswami and his son Sithapathi had been in separate enjoyment of the properties which fell to their respective shares in this partition. The suit out of which this appeal arises was instituted by the respondent for partition of the properties mentioned in schedules A to C to the plaint, which admittedly belonged to his father, at the time of his death in 1951.
2. The case of the respondent in the plaint was that his father Doraiswami died intestate, and he (the respondent) was entitled to a half share in Doraiswami's properties, the other half going to the appellant.
3. This claim was met by the appellant by propounding the Will Ex. B. 1 alleged to have been executed by Doraiswami on 9-8-1951. According to the terms of this Will, Doraiswami left all the properties which he had obtained by partition, to his second wife, the appellant absolutely. Regarding outstandings and moveables comprised in schedules B and C of the plaint, the appellant raised a contest by denial of existence of some of them. It is not necessary for the purpose of this appeal to take any more notice of this contest.
4. The respondent attacked the Will of Doraiswami as a forgery. His case was that his father was unconscious continuously for 3 days prior to the date of the Will, and that the Will Ex. B. 1 was really fabricated by the appellant with the assistance of her two brothers and after Doraiswami had died.
5. The learned District Judge, who tried the suit, came to the conclusion that though Doraiswami was conscious on 9-8-1951 when he is said to have executed the Will, it was not genuine in the sense that the proof adduced of execution of it by Doraiswami was not sufficient to carry conviction to his mind. However the learned District Judge was satisfied that if execution of the Will by Doraiswami was proved by the evidence on the record, it should be held that he executed it in a sound disposing state of mind. The main question for consideration in the appeal, therefore, is whether Ex. B. 1 has been proved to be the last Will and testament of Doraiswami executed by him when he was in a sound disposing state of mind. (His Lordship discussed the evidence and proceeded) :
We are satisfied on the scrutiny of the evidence that even three weeks prior to the date of his death Doraiswami had contemplated execution of a Will, and in fact attempted to execute Ex. A. 4, but this attempt proved infructuous, but that Doraiswami was anxious that after his lifetime his property should go to his second wife, and that he should execute an instrument to see that his divided son put no obstacles in the way of his widow enjoying his properties, and he actually carried out the object of executing Ex. B. 1 in a sound disposing state of mind. Disagreeing with the learned District Judge we hold that Ex. B. 1 has been proved to be the last Will and testament of Doraiswami by acceptable evidence.
6. We permitted Mr. M. S. Venkatarama Aiyar learned counsel for appellant to raise an additional ground not mentioned in the memorandum of appeal. It relates to the question of law, whether even if the Will Ex. B. 1 was not genuine, and Doraiswami be deemed to have died intestate, his widow, the appellant would not be entitled to the properties in suit, by reason of the provisions of the Hindu Women's Right to Property Act. A decision on this question may be unnecessary in this appeal, in view of our finding as to the genuineness of the Will. However, as the question was fully argued by both learned counsel appearing in the case, we would indicate our opinion on this point.
7. Section 3, Hindu Women's Rights to Property Act (Act XVIII of 1937), as amended by Act XI of 1938, provides for succession to separate and joint family properties of a Hindu governed by any school of Hindu law, or by customary law when he dies intestate leaving his widow or the widow of a predeceased coparcener. According to Clause (1) of Section 3 of the Act, the widow would be entitled to take a share in the separate property just as a son along with other heirs of the propositus. Clause (2) of Section 3 provides for succession to interest in joint family properties in the case ot a Hindu governed by any school of law, other than the Dayabhagha or by customary law and enacts that in such a case the widow of the propositus shall have the same interest in the property which he was possessed of at the time of his death, as he himself had.
Clause (3) of Section 3 provides that in the case of succession either under Clause (1) or Clause (2) of that section the estate inherited by the widow shall be analogous to the women's estate known to the Hindu law, except for the difference that in the case of succession under the Hindu Women's Rights to Property Act, the widow would be entitled to claim partition just like a male coparcener. This Act was intended as a beneficent piece of legislation to give Hindu women better rights in property. To construe the provisions of such an Act, it would be proper to look to the previous state of the law which it was intended to modify. Before this Act no Hindu widow governed by the Mitakshara School of law could have claimed any share in the separate property of her husband in the presence of a son, grandson or great grandson, or any share in his joint family property in the presence of any coparcener of her husband.
8. The Federal Court in Umayal Achi v. Lakshmi Achi , had to consider the effect of Clause (1) of Section 3. In that case one Arunachalam Chettiar died leaving his two widows and the widow of a predeceased son. The widow of a predeceased son claimed a share in the properties left by Arunachala, who was the last surviving coparcener of a joint family. She based her right under Section 3(1) of the Hindu Women's Rights to Property Act. In considering the question whether property held by the last surviving coparcener of a joint family could be called his separate property, the Federal Court ruled that the term 'separate property' used in Section 3(1) of the Act should be understood in a restricted sense, and could be properly applied only to such property in respect of which the son of the last surviving coparcener would not be entitled to claim coparcenary rights but only a right of inheritance by succession at the moment of his father's death if he survived him.
9. The next step in the argument of the learned counsel for the appellant was that every other class of property of a male known to Hindu law must come under the category of joint family property or an interest in joint family property mentioned in Clause (2) of Section 3. This argument found favour with a Bench of this court presided over by tho learned Chief Justice and Ramaswami J. in Subramania v. Kalyanarama, : AIR1957Mad456 .
10. There a widow claimed a share in the property of her husband who had become divided from his two sons some time before his death. Krishna-swami Nayudu J. against whose judgment that L.P.A. has been preferred had held that the ruling of the Federal Court in Umayal Achi's case , should be confined to the properties obtained by a sole surviving coparcener, and should not be extended to the property obtained by the last male holder in a partition of family properties.
11. The Bench in Subramania's case, : AIR1957Mad456 , was of the view that the principle of the Federal Court decision would equally apply to property taken by a member of the joint family at a partition of family properties. This seems to be warranted by the reasoning found in the judgment of Varadachariar J. who delivered the leading judgment in Umayal Achi's case . If the property obtained by Doraiswami at the family partition of 1945 is not separate property, within the meaning of Section 3(1) of the Act, we agree with Mr. Venkararama Aiyar that it must be deemed to be an interest in Hindu joint family property within the meaning of Section 3(2) of the Act. With respect, we concur with the Bench in : AIR1957Mad456 , in their opinion on this matter. However this does not dispose of the impediment in the way of the appellant getting all the properties of Doraiswami disposed of under the Will.
12. In : AIR1957Mad456 , the widow was given a third share in the properties of her husband by the decree of the trial court. But she had not appealed against that decree. Therefore the question as to what would be the quantum of the interest of the widow under Section 3(2) of the Act was left open in that case, as it did not arise for decision.
13. The learned counsel for the appellant drew our attention to the Full Bench decision in Navayana Sah v. Sankara Sah, I.L.R. Mad 1: (A.I.R. 1929 Mad. 865), which, following the ruling in Manjanatha v. Narayana, I.L.R. Mad 362, upheld the principle of equality of share in partitions among coparceners, governed by the Mitakshara School of Hindu law. He particularly drew our attention to the passage in the judgment of Wallace J. in that decision wherein the learned Judge mentions three points on which the decision in Manjanatha's case, I .L.R. Mad 362, rested.
The second of these points was that to allow a coparcener, who had already taken his share in a prior partition to take a further share in the properties in a partition which takes place subsequently would be to defeat the principle of equality of members of the same branch. By analogy he argued that the respondent having already taken away his share of the family properties in the partition of 1945 would have no right to claim any share again in the properties left by Doraiswami. The rule laid down in the Full Bench decision above mentioned does not in our opinion directly apply to the facts of the present case. But the analogy is very striking.
If the property, which Doraiswami left, is to be deemed to be joint family properties, then Sub-section (2) of Section 3 provides that his widow shall stand in the shoes of her husband in respect of this property and shall have in that property the same interest which he himself had. Even if the fiction of a notional partition at the time of Doraiswami's death is to be assumed the argument was that the rule in the Full Bench case would prevent the respondent from taking any further share in the properties now in dispute.
14. But it is not really necessary to invoke the rule in I.L.R. Mad 1: (A.I.R. 1929 Mad. 865), because the very object of the legislation, Hindu Women's Rights to Property Act was to modify the ordinary rule of Hindu law, by which a widow like the appellant before us would be excluded from taking any benefit in the properties of her husband, which he obtained in a joint family partition in the presence of her step-son. Therefore the true effect of Sub-clause (2) of Section 3 of the Act would be to exclude the respondent from taking any share in the properties in suit left by his father, even if he had died intestate. The phrase 'an interest in a joint family property' in Section 3 (2) will in our opinion cover an interest partitioned as well as unpartitioned.
15. A similar view was taken by a Bench of the Orissa High Court in Visalamma v. Jagannadha Rao, (S) : AIR1955Ori160 . In our opinion even if the Will, Ex. B. 1 is not genuine, the claim of the respondent for a share in the properties left by his father should be negatived.
16. In the result, the appeal is allowed. The decree of the lower Court is set aside and the suit of the respondent is dismissed with full costs of the defendant regarding the suit and half the cost of the defendant regarding the appeal as we allowed the defendant to raise a new point in the appeal not adverted to in the court below.