Govinda Menon, J.
1. This is an appeal against the decree and judgment of the Subordinate Judge of Tiruchirapalli in a suit for partition and separate possession of a half share in the properties comprised in schedules A, A1, B, C, F, F1 and F2 of the plaint and for possession of the properties comprised in Schdules D and E or for Rs. 1,996 being their value and for future mesne profits at Rs. 4,000 per annum and decreed in part. The appellants in this appeal arc defendants 1 and 5, The plaintiff is the widow of one Subbaraya Iyer who was the son of defendant 1, L. Bapu Iyer. Defendant 2 is the daughter of Bapu Iyer while defendants 3 and 4 are the minor sons of defendant 2. Defendant 5 Seethalakshmi Animal is another daughter of defendant 1. At the time of death of Subbaraya Iyer on 24-8-1947, Bapu Iyer and his son Subbaraya Iyer were the sole undivided members of a joint Hindu family, defendant 2 and defendant 5 having been married out of their family sometime prior to that.
The plaintiff was married to Subbaraya Iyer as his third wife in 1940. She, on the strength of the Hindu Women's Rights to Property (Extension to Agricultural Lands) Act, Madras Act 26 of 1947, has filed the present suit for recovery of possession of a half share in the entire joint family properties. As a result of the passing of the Hindu Women's Rights to Property Act, Central Act 18 of 1937, as amended by Act 11 of 1938, it was provided by Section 3, Sub-section (2) that 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. Sub-section (3) stated that any interest devolving on a Hindu widow under the provisions of Section 3 shall be a 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.
2. The Federal Court of India in 'Hindu Women's Rights to Property Act, 1937, In the matter of , held that in view of the provisions of the Government of India Act of 1935, by the time the Central Legislature came to pass Act 18 of 1937, devolution of agricultural lands had become a provincial subject and consequently the scope of Act 18 of 1937, as amendedby the Act 11 of 1938 did not extend to succes-sion to agricultural lands. Various Provinces took up this matter and passed necessary Acts by which the operation of the Hindu Women's Rights to Property Act was extended to agricultural lands as well, in their respective Provinces. Thus, for example, the Bombay Act 17 of 1942, the Bihar Act, 6 of 1942, and the United Provinces Act 11 of 1944 came to be passed. The Madras Legislature also finding that it was not expedient to have two rules of succession one with regard to agricultural lands and the other for other species of property, passed the Madras Act 26 of 1947 to remedy the decision of the Federal Court. The Bill which ultimately became the Act, namely, the Madras Act 26 of 1947, was published in the Fort St. George Gazette on 26-11-1947 and it became law on 18-12-1947 having received the assent of the Governor on that date.
By Section 2 of this Act the term 'Properly' in the Hindu Women's Rights to Property Act, 1937 and the Hindu Women's Rights to Properly Act (Amendment Act) 1938 was made to include 'agricultural land' as well. Section 3 stated that 'nothing contained in this Act shall apply to the property of any Hindu dying inleslate before the 26th day of November 1946' and there was an explanation added to Section 3 which was to the effect that a person shall be deemed to die intestate within the meaning of the section in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. It is, therefore, clear that by the Madras Act 26 of 1947 the Central Acts, namely, the Hindu Women's Rights to Property Act, 1937, and the Amending Act, the Hindu Women's Rights to Property Act (Act 11 of 1938) were extended in their operation to all kinds of property, whether agricultural or otherwise, in which the deceased male member had a right. The learned Subordinate Judge, therefore, held that in view of Section 3 of the Madras Act 26 of 1947, the plaintiff is entitled to the right of partition and to recover possession of her husband's half share in the joint family properties.
There were also disputes with respect to what the divisible properties were, and the points that arose in those disputes were decided partly in favour of defendants 1, 2 and 5 who claimed rights in them. As stated already, App. No. 556 of 1950 is by defendants 1 and 5, and App. No. 576 of 1950 is by the defendants 2 to 4 against the conclusion by which certain properties in F-2 schedule of the plaint were field to be partible. Appeal No. 204 of 1951 is by the plaintiff regarding properties mentioned in F, F-1 schedules and Rs. 40,000 cash. As my learned brother has exhaustively considered the correctness of the decision of the learned Subordinate Judge on the questions of fact raised before him and as I am in complete agreement with the conclusions arrived at by him, I do not wish to discuss those points argued in the appeal. I would content myself with expressing my opinion on two questions of law which have been exhaustively argued by Mr. K. V. Venkatasubramania Iyer on behalf of the appellants in App. No. 556 of 1950, and by Mr. S. Hamachandra Aiyar on behalf of the plaintiff, appellant in App. No. 204 of 1951.
3. The argument of Mr. K. V. Venkatasubramania Iyer is that despite Section 3 of Act 26 of 1947, the Act has no retrospective application and therefore, the plaintiff cannot have any rights to partition in the joint family properties of her husband as he died on 24-7-1947 nearly four months before the Act came into force. It would be advantageous to compare Section 3 of the Madras Act 26 of 1947 which corresponds to Section 4 of the Central Act 18 of 1937. While in Section 4 of the Central Act it was stated that nothing in the said Act would apply to the property of any Hindu dying intestate before the commencement of the Act, Section 3 of the Madras Act fixed the date 26-11-1946, and provided that nothing contained in the Act shall apply to the property of any liindu dying intestate before 26-11-1946, though the Act came into force only on 18-12-1947. In both the Acts the section is put in the negative form. That is, the declaration is that the provisions of the Act shall not apply if the death took place before a particular date and not that the provisions of the Act shall apply if the death took place after a particular date. 1 am mentioning this because the learned counsel for the appellants has laid great stress that a positive provision cannot be inferred from a negative statement in an enactment. The other argument is that both sections, Section 4 of Act 18 of 1937 and Section 3 of Act 26 of 1947, shall apply only to separate properties which the deceased person could have disposed of by a will and not to his interest in joint family properties which under the customary law, he cannot bequeath by means of a will. I shall express my opinion on this aspect of the matter later on.
4. Sub-section 3 of Section 1 of the Madras Act 26 of 1947 states that the Act shall come into force at once, and in Section 2 it is stated that the term 'property' in the Central Act 18 of 1937, as amended, by Act 11 of 1938 shall include agricultural land. The word 'shall' in these two sections is relied upon to show that the provisions of the Act are only prospective and despite Section 3 of the Madras Act they could have no retrospective operation at all. On the other hand, the contention on behalf of the respondents is. that since the Madras Act is a declaratory or explanatory one, if Section 3 had not been enacted then the Act would have co-cxtcnsivc operation as the Central Act, 18 of 1937 and would be applicable with regard to agricultural lands in the case of every Hindu dying intestate after the commencement of the Central Act 18 of 1937. We may also in this connection advert to a circumstance namely that the bill which later on became the Madras Act 26 of 1947 contained a clause to the effect that nothing contained in the Act shall apply to the property of any Hindu dying intestate 'before the commencement of the Act'. It was during the course of the discussion in the Legislature that the latter portion of the original clanse was removed and the date 26th of November 1946 was fixed as the utmost backward limit.
The corresponding section to Section 2 of the Madras Act in the other provinces stated that the tenn 'property' etc., shall .include and shall be deemed always to include agricultural lands. Whether the omission of the words 'shall be deemed always to include' in the Madras Act makes any difference is a matter for consideration. Learned counsel for the appellants' argument is that when Section 2 uses the words 'shall include' they can only refer to future application and that there could not have been any intention to include within the ambit of the Actsuccession to estates where a Hindu male had diedbefore the date of coming into force of the Act and in support of this argument our attention is invited to the provisions' of Section 1(3) where it is statedthat the Act shall come into force 'at once'. It is urged that a combined reading of Sections 1(3) and 2 can lead to only one conclusion, namely, that the Act can only be prospective and can have application only from the date of its coming into forceand not from any antecedent date.
Mr. Venkatasubramania Aiyar has tried to prop up his argument by means of what he considers the historical background of the Hindu Women's Rights to Property Act, Act 18 of 1937, and why in Section 8 of the Madras Act 26 of 1947, the earlier date hasbeen fixed. According to Section 2 of the Hindu Law oi Inheritance (Amendment Act 2 of 1929) a son's daughter, daughter's daughter, sister and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's Jathcr and before a father's brother. In interpreting this section Sundaram Chetti J. delivering the judgment of the Court in -- 'Krishnan Chettiar v. Manikkammal AIR 1934 Mad 138 (B) observed that it did not apply to cases of Hindu males who died intestate before its coming into force and that in determining the order of succession to the estates of such persons, the Hindu law as it stood before the Act should be applied. That means that if the succession opened after coming into force of the Act by the death of a limited owner, such a circumstance would not attract the application of the Act but that in such cases the customary Hindu law should apply.
5. The result of this decision was that if a Hindu male died leaving a widow before the Act came into force and the estate was inherited as the Hindu widow's estate, then if she dies after coming into force of the Act the inheritance shall be not in accordance with the provisions of the Act, that is, the daughter's son would not have precedence as is contemplated by the Act. It was considered that this decision did not correctly lay down the law and after some controversy, in -- 'Lakshmi Ammal v. Anantarama Ayyangar AIR 1937 Mad 699 (C), a Full Bench of this Court overruling the view of Sundaram Chetti J. laid down that when the last male owner, a Hindu, died before the passing of the Hindu Law of Inheritance (Amendment) Act 2 of 1929, leaving a female heir (a limited owner under the law) who was alive after the Act came into force, the succession to the last male owner is governed by the provisions of the Act and therefore when a female heir intervenes the fictional death of a Hindu male is something different from his actual death, the result being that the date of his death is for this purpose postponed to the death of the limited owner.
This question was considered by their Lordships of the Judicial Committee in -- 'Dunichand v. Mt. Anar Kali , where it was held that the Act applies not only to the case of a Hindu male dying intestate on or after the Act came into force hut also to the case of such a male dying intestate before the date of the Act coming into force if he was succeeded by a female heir who died after that date. Such being the case, the material point of time for the purpose of the Act is the date when the succession opens,namely, the date of the death of the female heir, The Madras Full Bench case and the Privy Council case referred to above have given the quietus to the view held in AIR 1934 Mad 138
6. According to the learned counsel for the appellants at the time of the passing of the Madras Act 26 of 1947, the Legislature had before it ail these decisions and what was intended by the insertion of Section 3 was to restate the view put forward by Sundaram Chetti J. in AIR 1934 Mad 138 (B) and thereby declare that the law enunciated therein is correct and not what the Full Bench or the Privy Council had. stated. The object and purpose of Section 3 therefore, was that the Act should not apply it the Hindu male owner had died before 26-11-1946 leaving a female heir but only died after the passing of the Act. Our attention has also been invited to the observation of single Judges of the Allahabad High Court in -- 'Mt. Phulia v. Narpat Singh', : AIR1954All307 (E) and in -- 'Mst. Audhraji v. Pateshar Nath', (1951) 6 DLR 270. In : AIR1954All307 (E) Kidwai J. had to consider the scope of Section 2 of the Hindu Law of Inheritance Amendment Act (1929) and the Hindu Women's Rights to Property Act (1937) Section 4 and the learned Judge was of the opinion that the crucial point for consideration was when the succession opened and not when the Hindu male owner died. The learned Judge observed that applying the principles laid down by their Lordships in what has to be considered is when the succession opened and not when the Hindu male died.
A similar view was taken by Wanchoo C. J. in 195 6 DLR 270. Mr. Venkatasubra-mania Aiyar, therefore, argues that Section 3 was introduced into the Madras Act 26 of 1947 only with the object of fixing the point of time when the Act has to come into force, that is, the date of the death of the male owner & not the date when the succession opens and that date should be before 26-11-1948 and not any subsequent date and it is not sufficient if the succession opened after that date. To justify this argument the learned counsel has brought to our notice a few English decisions and passages from text books to the effect that where there is a negative provision in an enactment nothing positive can be inferred from such a negative statement, for according to him, Section 4 of the Central Act and Section 3 of the Provincial enactment lay down a negative.. set of circumstances, that is, the Act should not apply to the property of a Hindu dying intestate before 26-11-1946. It does not say that the Act shall apply to the property of a Hindu dying intestate after 26-11-1940. If there had been such a positive definition then there would be no difficulty whatever in holding that in the present case the provisions of the Act would apply.
We ate, therefore, asked to state that if the Legislature had intended that this Act should be applied only after 26-11-1948 what prevented from putting their intention in a positive form unless it be that the intention of the Legislature was that the Act should only be prospective in its operation. In the case of -- 'West Derby Union v. Metropolitan Life Assurance Society', 1897 AC 647, the House of Lords have laid down that where there are no affirmative words indicating the granting of any power, the same cannot be inferred by a negative statement contained in a proviso. Allthe Law Lords including the Lord Chancellor haveagreed with the observations of the Court of Appeal in the case reported in -- 'Guardians of West Derby Union v. Metropolitan Life Assurance Society', 1897 1 Ch D 335 (G). It is not necessary for the purpose of this case not to accept the maxim as laid down by their Lordships but the whole question is what did the Legislature want to lay down by the provisions of Section 3 of the Act. Paragraphs 513 and 514 at page 670 in Vol. 31 of the Halsbury's Laws of England and passages at pages 212 and 213 of the Maxwell's Interpretation of Statutes (10th Edn.) were also relied on.
7. On the other hand Mr. Ramchandra Aiyar for the plaintiff respondent, has argued that by necessary implication Section 3 of the Madras Act 26 of 1947 must apply to a case where a Hindu male died after 26-11-1946 and that Section 3 is only a saving clause that is, it is a remedial provision but for whose existence the retrospective operation of the statute would be from 1937 itself, that is, from the date of the coming into force of the Central Act 18 of 1937 and that what the Legislature wanted was that the retrospective operation of the Madras Act should be restricted to the date 26-11-1946 and not to the year 1937 which would have been the effect had it not been for the enactment of Section 3 because but for it the whole of the Central Act would have been incorporated so far as the agricultural lands are concerned in the Madras Act from the date of its passing.
He further contended that because Section 1(3) of the Madras Act states that the Act shall come into force at once it does not mean that it cannot have retrospective effect. For this purpose a passage from Halsbury's Laws of England, Vol. 31, at page 515, to the following effect was quoted:
'It does not follow that because a statute does not contain the words 'from and after the commencement of this Act' it is retrospective or that when it contains them it is not retrospective. The word 'retrospective' is in itself ambiguous. A statute is not to be construed to have a greater retrospective operation than its language renders necessary.'
8. If we look at the history of the legislation it would be clear that the Madras Act is declaratory or explanatory which would automatically have retrospective effect and according to the learned counsel but for Section 3 of the Act, the Act would have had application from 1937 which the Legislature did not want. In Craies Statute Law 5th Edn. at page 364 there is the following passage:
'Where a statute is passed for the purpose of supplying an obvious omission in a former statute, or as Parke J. said in 'R. V. Durseley', (1832) 3 B & Ad 465 (H), 'to explain a former statute' the subsequent statute has relation hack to the time when the prior Act was passed.'
Thus in -- 'Attorney General v. Pougett', (1816) 2 Price 381 (J), it appeared that by 53 Ceo. 3.C. 33, a duty was imposed upon hides of 9s. 4d. but the Act omitted to state that it was to be 9s. 4d. per cwt. and to remedy this omission 53 Geo 3 C. 105 was passed. Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to payduty of 9s. 4d. per cwt. but Thomson C. B. ingiving judgment for the Attorney General said:
'The duty in this instance was in fact imposed by the first Act but the gross mistake of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act, but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act. Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable.'
9. Declaratory Acts are defined at page 56. A declaratory Act is defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective.
10. In Maxwell on Interpretation of Statutes, 10th Edn. at page 222 the learned author observes that if a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable, and quotes several authorities for this proposition. There are various passages in the well known treatise 'Statutory construction and interpretation of laws' by Crawford regarding the declaratory and remedial rights. See Section 74 at page 107, Section 78 at page 110 and more especially Section 234 at page 439, where the effect of adopted statutes is clearly explained. In such cases the adopted provisions become a part of the adopting statute. It is, therefore, argued in this case that if the Madras Act 26 of 1947 is a declaratory statute which has adopted certain clauses relating to inheritance of agricultural lands from the earlier Central Act, then but for the provision of Section 3 the Madras Act would have operation from 1937.
We are of the opinion that there is much force in this argument. We have already remarked that Clause 3 of the Bill which later on crystallised into an Act stated that nothing contained in the Act shall apply to the property of any Hindu dying intestate before the commencement of the Act and it was because between the date of publication, namely, 26-11-1946 and the date when the bill became the law on 19-12-1947, more than a year had elapsed when Section 3 came to be enacted. Another way of looking at the question is to conclude that Section 3 is only a saving clause which would certainly have the effect of retrospective operation. At pages 161, and 304 of Maxwell on Interpretation of Statutes we have the principles laid down as to how the saving clauses are to be construed and following those principles we are of the opinion that Section 5 can be construed as a saving clause which has the effect of giving retrospective operation to the statute.
11. It is not as if the point which we have to consider now is bereft of authority. In 'App. No. 165 of 1949 (Mad) (G)', Salyanarayana Rao and Bala-krishna Aiyar JJ. had to consider the retrospective operation of the statute. What they stated is as follows:
'The next question is whether the Act is retrospective. In our opinion, the language of Section 3 is clear in this respect for it says that 'nothing contained in this Act shall apply to propertyof any Hindu dying intestate before the 26th of November 1946' thereby implying that if a person died intestate after that date, the Act would apply notwithstanding that the Act came into force only after the institution of the suit, the language of the Act by necessary implication extends the provisions of the two Central Acts to agricultural lands in the province in such a mam ner as to take in cases of intestacy occurring after 26-11-1946.'
This was followed by the learned Chief Justice and Venkatarama Aiyar JJ. in 'App. No. 881 of 1950 (Mad) (K)', and 'L. P. A. No. 206 of 1951 (Mad) (L)'. But Mr. Venkatasubramania Aiyar argues that the points which has raised before us regarding the prospective nature of the statute were not put forward before the two Benches who decided the two cases referred to above, with such a wealth and prosperity of legal learning as he has done in the present case. We are afraid that such an argument cannot be countenanced since it seems to us that these two decisions did lay down the correct law and therefore we must follow them and despite the learned arguments of the learned counsel we are not inclined to hold that the Act is only prospective and not retrospective in its operation.
12. Another point raised by the learned counsel is that even if the Act 26 of 1947 would take effect only from 26-11-1946, still on its face Section 3 of that Act would apply only to separate property of any Hindu dying intestate after 26-11-1946 and not to the joint family estate. Under the Mitaksbara law it is fairly well settled that an undivided member of a Hindu joint family cannot dispose of his rights in the joint family properties by means of a will, though there had been some conflict which is now settled as to whether a person can alienate his share in the joint family proprety by means of a deed 'inter vivos'. If that is so, it is urged beacuse of the expression 'A Hindu dying intestate' in Section 3 being inapplicable to the case of a Mitakshara joint family, the section must be restricted to the cases of separate property of any Hindu. Even here it seems to us that the learned counsel's argument is not acceptable. One of the decisions of this Court already adverted to by us, namely, App. No. 881 of 1950 (Mad) (K), was with regard to the joint family properties of one Rama-swami Goundan and his two brothers and the learned Judges who decided that case did not make any distinction as regards the applicability of the Hindu Women's Rights to Property Act and its extension to. separate properties alone. In the present Act 18 of 1937, Section 2 says-
'Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate.'
Section 3 of the same Act deals with a Hindu governed by the Dayabhaga school of Hindu law as well as any other school of Hindu law or customary law and with the separate properties of any Hindu following any school of Hindu law and as stated already Section 4 is practiealiy 'ad idem' with Section 3 of the Madras Act 26 of 1947 excepting that the date is fixed instead of the words' commencement of the Act'. There might have been some doubt as to whether it was absolutely necessary to use the expres-sion 'dying intestate' in Section 2 but since it has to be applied to the Hindus governed by the. Dayabhaga school of law who can begueath their share in the joint family properties by means of a will, the expression used is apposite and. even in the case of the Hindus following the Mitakshara law decisions are attempting to broaden the right of the member of the joint family with regard to testamentary dispositions of his share of the joint family properties.
One tiling is clear and that is the Hindu Women's Rights to Property Act and its extension to agricul-tural property as well in the Madras State can come into play only where a person dies intestate and not where he has disposed his property by means of a will. Dying intestate is necessary pre-requisite for the application of the Act and it is only in that way that the saving sections, namely, Ss. 3 and 4 respectively have to be interpreted. Mr. Venkatasubramania Iyer tried to argue that the distinction between the joint family property and the separate property for the application of these Acts was not considered in the two Madras cases mentioned by us above. In the earliest of them, namely, A. No. 165 of 1949, (Mad) (J), it may be doubtful whether the properties dealt with therein were the joint family properties or not but surely A. No. 881 of 1950, (Mad) (K), dealt with joint family properties. We are not prepared to say that the mere fact that this point has not been specifically adverted to in the judgment of the learned Chief Justice and Venktarama Aiyar J. would detract from the value of that decision for if there had been any force in such a point then the learned Judges would certainly have referred to it.
Two decisions of the Orissa High Court, namely, -- 'Radhi Bewa v. Bhagwan Sahu', : AIR1951Ori378 (SB) (M), and -- 'Nandkishore v. Sukti Dibya', : AIR1953Ori240 (N); were cited before us. But in neither of them is there any clear exposition or decision that the Act would apply only to the joint family properties and not to separate properties. In the view which we have taken regarding the retrospective nature of the Act, it is unnecessary to advert at any length to these decisions. We are, therefore, of the opinion that the second argument that by the enactment of Section 4 the extension of the Act to agricultural lands is taken away from the category of the joint family properly cannot be accepted. On the other points arising in the case in App. No. 556 of 1950, I agree with my learned brother in the conclusions he has reached and so I am not adding any observations of my own. He has covered all the questions of fact arising in App. 576 of 1950 and I am in complete agreement with the conclusions arrived at by him regarding the properties covered by F-2 schedule.
13. App. 204 of 1951: The main point urged by Mr. Ramachandra Iyer for the appellant is that the lower court has not correctly appreciated the duty of a manager of a Hindu joint family in a partition suit to account for the entire joint family property that has come into his hands. The manager's liability to account on partition is succinctly stated in Mullah's Hindu Law, 11th Edn. para 238 at page 282 thus:
'In the absence of proof of misappropriation or fraudulent and improper conversion by the manager of a joint family estate he is liable to accounton partition only for the assets which he has received, not for what he ought or might have received if the family money had been profitably dealt with. Further in the absence of any such proof a coparcener seeking partition is not entitled to require the manager to account for his past dealings with family property. All that he is entitled to is an account of the family property as it exists at the time he demands a partition. But it is open to him to show that the expenditure which the manager alleges he has incurred has not in fact been incurred, or that more properties are available for partition than those dis-closed by him'.
At page 405 para 305 in the same book the learn-ed author states-
'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.'
In Mayne's Hindu law, 11th Edn. in para 416 at pages 516 and 517 the matter is dealt with practically in the same strain. A member who seeks partition is entitled to an account of the family properties as they stand at the date of partition but is not entitled to open up past accounts or to claim relief against past inequality of enjoyment of the family properties. All that he is entitled to is an account of the family properties as they exist at the time he demands partition. But if he alleges and proves past acts of fraud or misappropriation on the part of the manager the rule would not apply.
14. In the present case the matter is complicated by the fact that under Exs. A. 9 and A. 10 before the branch of Bapu Iyer became separate the joint family had received certain sums of money of which one third share had come into the hands of Bapu Iyer. Mr. Ramachandra Iyer relies upon certain alleged admissions made by Bapu Iyer not only when he gave evidence that at the time of the partition in 1943 all the amounts realised were partitioned except Rs. 2,000 and odd. From this it is sought to be argued that large sums of money had come into the hands of Bapu Iyer which he had not accounted for. We do not think that these admissions go to the extent which the learned counsel suggests they do. The evidence of D. Ws. 1 to 3 is to the effect that at the time of the partition the joint family had cash Rs. 19,200, and under the partition each of the three brothers got Rs. 6400 and some evidence has been let in to show how this sum of Rs. 6400 was expended. The question in this case is as to the onus of proof. The plaintiff has practically let in no evidence as to what the quantum of the joint family property was on the date of the partition.
It is seen that Bapu Iyer became the manager of the joint family only in 1943 and before that Kuppuswami Iyer was managing the affairs of the family. So unless it is shown that the moneys actually came into the hands of Bapu Iyer on the date of the partition he cannot he held liable or to account for what ought to have come into his hands. Large sums of money came into the coffers of the joint family when Kuppuswami Iyer was the manager of the family. In -- 'Nibaran Chandra v. Nirupama Debi', AIR 1921 Cal 131 (O), there isa significant phrase at page 139 in the judgment where the learned Judges state:
In an ordinary suit for partition in the absence of fraud or other improper conduct, the only account the karta is liable for is as to the existing state of the property divisible; the parties have no right to look back and claim relief against past inequality of enjoyment of the members or other matters.
So the question is whether there can be any question of looking back and claiming relief against past inequality of enjoyment and in our opinion there cannot be.
But Mr. Ramachandra Iyer contends that a mere 'ipse dixit' of the manager as to the quantum of. exsisting properties would not be sufficient because the junior member who flies a suit for partition is not in a position to know what exactly are the properties of the joint family and therefore there must be some burden on the manager of the family to prove what he did with the moneys of the joint family that have come into his hands. A number oi cases have been cited bearing on this question, the earliest of them being -- 'Balakrishna Iyer v. Muthuswami Iyer,' 32 Mad 271 (P), At page 274 the learned Judges laid down that a member of an undivided family who sues for parti-tion and who has not been excluded from the iamily is not, unless he establishes fraud or misappropriation entitled to call upon the managing member to account for his past dealings with the family property. All he is entitled to is an account of the family property at the time he asks for partition.
15. Mr. Ramachandra Iyer contends that the observations of Philips and Krishnan JJ. in -- 'Krist-nayya v. Guravayya', AIR 1921 Mad 443 (Q), pages 445-446, namely, that although the manager of a Mitakshara joint Hindu family is not responsible for the manner in which he disposed of the family income in the past except in case of fraud and misappropriation, he cannot when a partition is demanded evade his liability to give an account of the assets of the family as it existed at the time of the partition. The other members of the family are not bound to accept the statement of the karta as to what the properties at the time of the partition consist of and the court can order an account of the properties -to be taken, are applicable to the facts of the present case and from these observations it is sought to be argued that a general direction to take accounts must be given if the statement of the manager of the joint family as to what exactly are the properties at the time of the partition cannot be taken at its face value. Learned counsel also invited our attention to a number of cases regarding the liability of the manager of the joint family to account for the properties available on partition. They are the -- 'Official Assignee of Madras v. Rajabadar Pillai', AIR 1924 Mad 458, A. Perrazu v. Subbarayudu', ATR 1922 PC 71 (S); Tammi Reddi v. 'Gangi Reddi', AIR 1922 Mad 23 (T), 'Ramakrishna Iyer v. Paramcswara Iyer', 1931 M W. N. 215 (U), and 'Vaikuntam v. Avudi-appa : AIR1937Mad127 (V).
16. The true view regarding the onus of proof, in our opinion, is this: If when the manager of the joint family places before the Court the pro-perties, which according to him, are liable for divi-sion the court is not bound to accept that as a final word on the subject and it is open to the plaintiff to let in the evidence'to show that some properties belonging to the joint family have been excluded from the list furnished by the manager and if the court is satisfied that it is so, they will included. The omission to include such properties might be by an inadvertent mistake or because of some other reason. In such cases we cannot say that the manager is guilty of fraud or misappropriation. Likewise it is open to the plaintiff to show by evidence that the manager has been acting fraudulently during the course of his management and that acts of misappropriation, malversation or of fraud have taken place in which case the court is at liberty to direct a general account of the management. Without clear evidence regarding acts of fraud or misappropriation there cannot be a general back accounting by the manager. None of the cases cited before us show that merely because there is some slight evidence of the manager having received some amounts, it should be stated that he is guilty of fraud or misappropriation. In the case before us on the evidence on record we are not satisfied that Bapu Iyer has been guilty of any fraud or misappropriation. The matter has been dealt with in detail in the judgment of my learned brother with which I agree. In the circumstances App. No. 204 of 1951 is dismissed subject to the modification stated below.
17. By Court: Subject to the modification about the price of the earnings now fixed at Rs. 500, A. S. No. 566 of 1950 is dismissed; no costs. A. S. No. 576 of 1950 is allowed with costs. A. S. No. 204 of 1951 subject to the modification regarding S. C. S. No. 132 of 1947 the appeal is dismissed; no costs.
18. These are three connected appeals arising from the decree and judgment of the learned Subordinate Judge of Tiruchirapalli in O. S. No. 20 of 1948.
19. The facts are: In Tiruchirapalli town there were three brothers by name Bapu Aiyar, who is defendant! 1 in this suit, Kuppuswami Aiyar who is alive and not examined, and Subba Aiyar, examined as D. W. 2. In this suit we are concerned only with the fortunes of Bapu Aiyar. This Bapu Aiyar had a son by name Subbaraya Aiyar. This Subbaraya Aiyar married his own cousin, the plaintiff herein, as his third wife in 1940. It is common ground that this plaintiff's parental family is a fairly impecunious one and was dependent to some extent on Bapu Aiyar, the brother-in-law. This marriage lasted till 1947 and this unfortunate plaintiff lost her husband on 24-8-1947. It is now common ground that on the date of the death of Subbaraya Aiyar he and his father had not become divided. This plaintiff had no issue by Subbaraya Aiyar. There is no dispute that this family is possessed of considerable immovcable and movable properties constituting schedules A to F-2 in the plaint in this case.
There can also be no doubt that obviously to deprive the daughter-in law of as much property as possible this Bapu Iyer executed what is purported to be a settlement deed Ex. B. 12 on 28-10-1947 under which a- few acres of land had been settled upon the plaintiff and which bears noresemblance whatsoever to what she would be en-tilled to as the statutory heir under the Hindu Women's Bights to Property (Extension to Agricultural Lands) Act of 1947. Therefore, the suit has been laid for partition of the properties comprised in schedules A, A-1 B, C, F, F-1 and F-2 and separate possession of a half share in them, for possession of the properties comprised in schedules D and E or Rs. 1996 being their value and for future mesne profits on the ground that she as her husband's sole heir is entitled to his share of his properties under the aforesaid Act and on the allegation that those properties belonged to the joint family consisting of defendant 1 and his son Subbaraya Aiyar. Defendants 2 and 5 who are the daughters of defendant 1 and defendants 3 and 4 who are the minor sons of defendant 2 are impleaded on the allegation that they claim rights in the properties comprised in schedules F, F-l and F-2 and item 1 of schedule D.
20. The contests raised by the defendants are reflected in the seventeen issues which have been framed in the suit.
21. The learned Subordinate Judge came to the conclusion that the Hindu Women's Rights to Property (Extension to Agricultural Lands) Act of 1947, has retrospective effect from 26-11-1946 and plaintiff is entitled to a half share in the properties comprised in schedules A, A-l, B (except items 32, 33 and 34), in item 2 and Rs. 11,000 in item 3 of schedule C and in the properties comprised in Schedule F-2. In regard to the properties comprised in other schedules he found that the plaintiff was entitled to a share in the income of the joint family properties on the date of Ex. A. 50, for possession of the properties comprised in schedule D (except items 3 to 6) or their value and the properties comprised in schedule E (except items 1, 6 and 7) or their value with proportionate costs payable by defendant 1. Future mesne profits were relegated to be determined on an application under Order 20, Rule 12, C. P. C. The learned Subordinate Judge gave a decree embodying these reliefs and these three appeals arise therefrom.
22. Out of the three appeals before us, viz., A, S. Nos. 556 of 1950, 576 of 1950 and 204 of 195.1, A. S. No. 556 of 1950 has been preferred by defendants 1 and 5 and this appeal covers the agricultural lands in schedule A, certain items in the B schedule which are not pressed before us, item 2 in the C schedule comprising a sum of Rs. 10,000 in the Trinity Bank Ltd. and the earrings and rings comprised in the D schedule. Turning to A. S. No. 576 of 1950, it has been preferred by defendants 2.to 4 in regard to the F-2 schedule lands A. S. No. 204 of 1951 has been preferred by the plaintiff and relates to two sets of controversies, viz., that the plaintiff is entitled to a half share in the properties covered by F and F-l schedules, that the lower, court ought to have directed accounting in respect of the family properties by defendant 1 in regard to item 1 of the C schedule in a sum of Rs. 40,000, that in regard to item 3 of that schedule the plaintiff would be entitled to Rs. 1,000 in excess of what was granted, and that in regard to item 4 of that schedule the plaintiff will be entitled to a half of the decree amount in the small cause court decree.
23. It will be seen from a narration of the reliefsasked for in the several appeals that two points of law arise on the facts involved. The points of law are whether the Hindu Women's Rights to Property (Extension to Agricultural Lands) Act of 1947 is retrospective from 26-11-1946 and whether the plaintiff is entitled to the accounting from defendant 1 as asked for. I shall be dealing in this judgment with the questions of fact and my learned brother will be dealing with the two questions of law. Beyond indicating my concurrence with his conclusions for the reasons mentioned by him I shall not deal with them which means that I shall not be dealing with the controversy relating to the im-moveable properties comprised in the A schedule and the accounting asked for by the plaintiff in regard to item 1 of the C schedule. I shall now proceed to deal with the following points of fact raised in these appeals.
(a) C schedule item 2-- Trinity Bank deposit;
(b) D schedule-- pair of ear-rings and two rings;
(c) lands comprised in F-2 schedule;
(d) properties comprised in F and F-1 schedules; (c) item 3 in C schedule relating to Rs. 1,000 inexcess of what was granted by the lower Court;and
(f) item 4 in schedule C-- small cause court decree.
(g) Accounting regarding Rs. six thousand and found received by D: 1 in 1943. ...
(His Lordship discussed the facts of the case and proceeded).
24. In the result, in these three appeals the decreeand judgment of the learned Subordinate Judge aremodified to the extents indicated above and willstand confirmed otherwise. In the judgment ofmy learned brother costs have been provided forand therefore I am not dealing with that point here.