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Saradambal Vs. S. Subbarama Aiyar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1942Mad212; (1941)2MLJ862
AppellantSaradambal
RespondentS. Subbarama Aiyar
Cases ReferredMoniram Kolita v. Keri Kolitani
Excerpt:
- - what a hindu woman's interest is, is well defined in hindu law, that is, she is competent to alienate that interest only for purposes sanctioned by hindu law and that interest is liable to be seized in execution of decrees for the payment of the debts of the last male owner......(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. under section 3 (2) the interest taken by the widow is the same interest as the husband himself had, that is, the interest of an undivided member of a joint family in the joint family property. the said interest is capable of definition and so far as this presidency is concerned, it is liable to separation by partition and alienable inter vivos for valuable consideration and liable to be seized in execution of a decree for the personal debts of the member. giving the language its plain.....
Judgment:

Venkataramana Rao, J.

1. This appeal raises a question relating to the construction of Section 3, Clause (2) of the Hindu Women's Rights to Property Act, 1937. The relevant facts are few. On the 18th December, 1935, the plaintiff obtained a decree for money in O.S. No. 1138 of 1935 on the file of the District Munsif of Coimbatore against the first defendant. Subsequent to the date of the decree the first defendant died. His wife the third defendant was brought on record as his legal representative. The plaintiff sought to implead the brother and the brother's son of the first defendant besides the third defendant, but the Court allowed only the third defendant to be brought on record and dismissed the application against the brother and the brother's son. The order passed by the learned District Munsif is to the following effect:

To implead the widow he relies upon the Act XVIII of 1937 by which a widow obtains the interest of her deceased husband. I do not think that the decree-holder can go both against the widow and against the brother and the brother's son. As the decree-holder is relying upon the Act XVIII of 1937 I must presume that the widow has taken the husband's property and his interest in the joint property. The widow will therefore be added as legal representative and the brother and the brother's son are struck off the record.

2. The third defendant filed a. statement of objections objecting to the execution being issued against her. She stated that her husband before his death left a will in her favour in and by which he gave certain immoveable properties to her for her maintenance which included also the suit properties and therefore they were not liable to be attached. The learned District Munsif took the view that the fact that the properties were given to her for her maintenance would not exonerate her liability to pay her husband's debt and he therefore allowed the execution to issue. On appeal, the learned District Judge took the view that if the properties were self-acquired, the will must be regarded as operative; but if the properties were regarded as joint family properties the share of the husband which vested in the third defendant under the Hindu Women's Rights to Property Act was liable to be attached. He confirmed the decision of the learned District Munsif.

3. On appeal Mr. Vedantam Subramaniam on behalf of the third defendant contends that the view of the learned District Judge in regard to the Hindu Women's Rights to Property Act is not sound. His contention is that under the said Act the . property would be taken by the third defendant free from the liability to pay her husband's debt and that it was not the intention of the Act to enlarge the rights of the creditors. The question is whether this contention is tenable. In view of the recent decision of the Federal Court, In the matter of The Hindu Women's Rights to Property Act (1941) 2 M.L.J. 12 that the said Act does not regulate succession to agricultural lands in the Governor's Provinces, of the properties that were attached which comprise 23 items in the schedule to the execution petition, only two items, namely, items 22 and 23 will be governed by the Act. The provisions of the Act which are relevant for the present discussion are Clauses 2 and 3 of Section 3 which run thus:

2. When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies intestate 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. Under Section 3 (2) the interest taken by the widow is the same interest as the husband himself had, that is, the interest of an undivided member of a joint family in the joint family property. The said interest is capable of definition and so far as this presidency is concerned, it is liable to separation by partition and alienable inter vivos for valuable consideration and liable to be seized in execution of a decree for the personal debts of the member. Giving the language its plain meaning, the widow takes that interest subject to the rights and obligations attached to that interest and subject to the restrictions placed on her powers by Clause (3) of the Act. That clause leaves the right to partition untouched but restricts the right of alienation because the nature of the interest which she takes is a Hindu woman's interest. What a Hindu woman's interest is, is well defined in Hindu law, that is, she is competent to alienate that interest only for purposes sanctioned by Hindu law and that interest is liable to be seized in execution of decrees for the payment of the debts of the last male owner. Taking both the clauses together the property taken by her is liable for the debts of her husband. The contention of Mr. Vedantam Subramaniam is that as the husband died undivided and the other creditor has not taken any sleps during his life-time to attach the said property, his remedy is lost. It is true that if the Act had not been passed, as the husband died without leaving a male issue the property would have gone by survivorship to his undivided brother and his brother's son and the doctrine of survivorship would prevent the creditor from attaching that property. But the Act has taken away that rule of survivorship and allowed the property to descend to his wife. Once the rule of survivorship no longer operates, there is nothing to preclude a creditor from attaching the property. Though the interest she takes is a limited interest of a Hindu woman, she is conferred the same status as that of a male owner. Even in the case of a female who takes a Hindu woman's estate, the inheritance vests in her for the time being as fully as it vests in any male succeeding to the, property but only with a restricted right of alienation. As pointed out by the Judicial Committee in Moniram Kolita v. Keri Kolitani :

The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest.

5. If for instance an undivided member dies leaving a son and also his widow, the property would devolve upon both of them and though, so far as the widow is concerned, her interest is limited no such limitation can be placed upon the interest taken by the son. It cannot be said that the interest of the son is attachable but not that of the widow. The fact that a right of partition is conferred upon the widow goes to show that the property is taken by her subject to all the rights and liabilities which the husband would have had because it is the same interest that is conferred upon her. Therefore giving the language its plain meaning, the property taken by her must be held to be liable for the payment of her husband's debts and is liable to be attached by the plaintiff. The view taken by the learned District Judge is therefore correct. The learned District Munsif will issue execution in the light of the observations contained in the judgment. I direct each party to bear his own costs in this appeal.

6. Leave to appeal refused.


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