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Kolla Naikan Alias Rama Naickan Vs. Muthayammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1911)21MLJ997
AppellantKolla Naikan Alias Rama Naickan
RespondentMuthayammal and ors.
Cases ReferredIn Dursan Singh v. Durbijoy Singh
Excerpt:
- - we see no good reason why a co-widow should have a higher right......defendant to an issue. the position 'therefore is this : the plaintiff, who is entitled to a co-widow's estate, seeks to recover possession of the entire property not on behalf of herself and her co-widow, the second defendant, but in her own exclusive right. both the lower courts have decided in her favour, and her learned vakil has tried to support the decree on the principles applicable to rights of a tenant-in-common and has argued that the right of a co-widow against a trespasser in possession is even higher than that of a tenant-in common. as regards the nature of a co-widow's estate it is settled that it is a joint tenancy in so far that on the death of one the entire estate goes to the survivor but each widow is entitled as against the other to a half share and is further.....
Judgment:

1. The question of law urged before us arises under the following circumstances. The plaintiff and the second defendant are the widows of the man who originally owned the property in dispute. The first defendant alleged that he was an undivided co-parcener of the plaintiff's husband and therefore entitled to the property. Both the courts below have found against the first defendant's plea. The second defendant supported the first, defendant's allegation and u appears that she had entered into an arrangement with him by which she recognised the 1st defendant who agreed to give her a certain amount in lieu of maintenance. The plaintiff claimed to recover the entire property, alleging that the second defendant had, by reason of unchastity, lost her rights as a co widow and the first defendant made similar allegations of unchastity against plaintiff. It has been found that the 2nd defendant's charges against the plaintiff are not made out, and the plaintiff apparently never thought of pushing her charges against the second defendant to an issue. The position 'therefore is this : the plaintiff, who is entitled to a co-widow's estate, seeks to recover possession of the entire property not on behalf of herself and her co-widow, the second defendant, but in her own exclusive right. Both the lower courts have decided in her favour, and her learned vakil has tried to support the decree on the principles applicable to rights of a tenant-in-common and has argued that the right of a co-widow against a trespasser in possession is even higher than that of a tenant-in common. As regards the nature of a co-widow's estate it is settled that it is a joint tenancy in so far that on the death of one the entire estate goes to the survivor but each widow is entitled as against the other to a half share and is further entitled to alienate her husband's estate. As regards the right of a co-tenant to recover more than his share we think the law is correctly stated in WARWELLE on Ejectment (Section 123, p. 128.) If the suit is on behalf of the other co-tenant also, the plaintiff is entitled to recover the whole; otherwise he is entitled to recover only his share unless the suit is based on allegations of prior possession or dispossession. In Dursan Singh v. Durbijoy Singh (1909) 9 C.L.J. 623 it is laid down that a co-parcener of a Mitakshara family is entitled as against a trespasser to recover only his share. We see no good reason why a co-widow should have a higher right. Besides, in this case, it is alleged that the second defendant has received from the first defendant Rs. 400 under the arrangement already alluded to, and so it is possible that there might be equities in favour of the first defendant against the second defendant in case the latter sought to recover her share. In our opinion the plaintiff was entitled to recover only a half-share in the property and the decree of the lower courts will therefore be modified accordingly. There will also be a decree for division. Each party will bear his or her own costs of this appeal.


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