Rajagopala Ayyangar, J.
1. This is an appeal against the order of the District Judge, Coimbatore, on an application under Section 43(1) at the Guardians and Wards Act, refusing to grant interim injunction restraining the 1st respondent the property guardian from handing over any portion of the income, of the minor's properties to the 2nd respondent who is the minor's step mother or retaining any portion thereof for herself.
2. Tile matter has had a considerable amount of previous history and the circumstances in which this application came to be filed were briefly these. One Andavan Chettiar, the father of the minor concerned in this appeal, died on 12-3-1950 leaving considerable properties. This minor boy, by name Arunthavachelvam, was the sole issue of the deceased who left him surviving besides of course this minor child two widows Thayammal and Venkalakshmi Animal, the former being the mother of the minor. The deceased also left behind him his own mother Kuppathal who is the appellant in this appeal.
Sometime after the death of Andavan Chettiar, the appellant filed O. P. No. 67 of 1953 under the Guardians and Wards Act, praying for the appointment of a guardian for the properties of the minor. The two widows of Andavan Chettiar were impleaded as respondents to this petition. The parties appear to have settled their disputes and reported to the court that the petitioner Kuppathal had no objection to Thayammal, the 2nd respondent, being appointed the guardian of the minor's properties on condition however of her furnishing security in a sum which would ensure her administration in the minor's estate efficiently. The annual income from the properties left by the deceased appears to have been subject to fluctuations in different years and the District Judge determined the average income at about Rs. 50,000. He thereupon passed an order on 27-1-1954 appointing the mother Thayammal whose rectitude was not impeached in the proceedings as the property guardian on condition of her furnishing security in the sum of Rs. 50,000. He however added at the end of this order a reservation which had led to complications. He said :
'The respondents as widows cannot be asked to furnish security in the full sum as they have also certain rights to the .........property, the details and the nature of which I deliberately retrain from discussing in this order.'
The guardian was directed to furnish a draft bond by 1-2-1954. Kuppatharmnal the mother was not satisfied with the condition us to security imposed by the learned District Judge and fioled C. M. A. No. 73 of 1954 to this court disputing particularly the sufficiency of the amount of security demanded. The contention raised was that normally the amount of security furnished by a property guardian should, in accordance with the rules framed by mis court under the Guardians and Wards Act, 1890, be at least twice the annual income from the property and that no circumstance existed to justify a departure from that rule.
The appeal came on before Balakrishna Aiyar J., and the learned Judge upheld the order of the court below as regards the quantum of the security as one calculated to further the interest of the minor but ho imposed certain other conditions on the guardian which are not relevant in the present context. The learned Judge added 'In respect of any other matter that may arise the parties are at liberty to move the District Judge and take his orders.' The decision of this court was rendered on 14-10-1954. The next proceeding to be noticed is I. A. No. 34 of 1935, which was an application taken out by the property guardian for directions that the step-mother might be permitted to realise a fourth of the rents for the properties as she had been doing till then.
It was said that since the death of Andavan Chettiar the senior widow had been in enjoyment of the properties which roughly amounted to a fourth share thereof a share to which she was entitled under the Hindu Women's Rights to Property Act, 1937, and that her 'right to that share in the properties of the deceased under the statute had not been challenged till then. Notwithstanding the appointment of the natural mother as the property guardian she claimed the right to appropriate a fourth share of the income as belonging to herself.
This application, however, was opposed by Kuppathammal the mother of the deceased and the District, Judge passed an order on 16-2-1955, which owing to its language had been the subject of conflicting interpretations by the parties. The learned District Judge said:
'It is not possible nor is it desirable to give any directions which are likely to affect and involve such important questions as the exact nature and extent of the 2nd respondent's rights in the property left by the minor's father. The minor's mother who is the petitioner was appointed guardian only of the minor's property. In the circumstances I refrain from giving any directions regarding the rights of the 2nd respondent in the entire property. This petition is closed.'
Kuppathammal, the mother of the deceased, treated this order as one in her favour by reason of its dismissal and the minor being treated as entitled to the entirety of the properties' of the deceased thus negativing for the time being at least any rights of the widows under the Hindu Women's Rights to Property Act. On the other hand, the sentence in the order reading 'The minor's mother who is the petitioner was appointed guardian only of the minor's property' -was treated by Venkalakshini Ammal and also by the guardian Thayammal as acceptance of their contention that the property vested in the guardian was confined to property to which share alone the minor had title.
In other words that the share in the property to which the widows became entitled under the Hindu Women's Rights to Property Act, 1937, did not vest in the natural mother as the property guardian. No appeal was preferred to this court by the parties from this order dated 16-2-1955 so as to get the matter clarified.
3. The next proceeding in O. P. No. 67 of 1953 was I. A. No. 73 of 1956 which was an application filed under Section 39 of the Guardian and Wards Act for the removal of the natural mother from the property guardianship of the minor. Several charges were made in this application and the matter is pending enquiry, and I am not pronouncing any opinion in regard to the charges made or to explanations offered. In the course of this application for removal of the guardian Kuppathammal filed I. A. No. 74 of 1956 from the order in which the present C. M. A. has been filed.
The prayer in this application was to restrain the property guardian from Handing over any portion of the income from the entire properties either to Venkalakshmi (the co-widow) or from taking any share to herself. This application became necessitated by reason of the entries in the accounts filed by the guardian which showed that for the period ending 31-10-1954 the guardian had debited the estate with the payment of a fourth share of the income to Venkalakshmi Animal showing the balance of three fourths alone as the income from the estate.
In the accounts submitted for the half year from January to June 1955 (1-1-1955 to 30-6-1955) the guardian had debited the estate with a fourth of the income as having been paid to Venkalakshini and another one fourth share to herself and showed the balance of one halt as the income of the minor's estate. The application I. A. No. 74 of 1955 stated that this was strictly against the specific directions of the court in the previous proceedings. In the course of the affidavit in support of this application, Kuppathammal said:
'According to me, they are not entitled to any rights under the Hindu Women's Rights to Property Act, XVIII of 1937, as amended by the Madras Act XXVI of 1947, inasmuch as the deceased died testate. Even otherwise they have got only, a right to demand a petition or be content with maintenance. So fair they or any one of them do not appear to have exercised their right to demand a partition. Their alleged right in the property has not yet been established or declared.'
4. In the counter-affidavit filed by the widows they denied that the deceased had executed any will and drew the attention of the Court to the fact that lease deeds had been taken in the joint names of the two widows and also pleaded that as the court had regained from negativing any rights of their own in I. A. No. 34 of 1955, the widows were entitled to credit themselves with a fourth share each, of the income from the properties. By his order the learned District Judge left the matter in haze but declined the injunction prayed for. He stated :
From the appointment order it is not possible toSay with certainty whether the claim of the respondents to a share in their husband's properties basedon the aforesaid Act, has been negatived. My learned predecessor, who appointed Use first respondentas guardian in O. P. No. 67 of 1953, has stated inI. A. No. 34 of 1955 that the guardian was appointed only in respect of the minor's property and onthat ground has refrained from giving any directionsregarding the rights of the 2nd respondent in theproperties set out in the appointment order.
In the accounts, which the guardian has filed into court, there are several entries indicating that she and the 2nd respondent have been taking one fourth income of the suit properties. In passing those accounts my learned predecessor has not objected to those entries. Even if the petitioner's case is accepted, the respondents as the widows of the minor's father are entitled to maintenance from the estate. In the original petition the present petitioner has conceded that each widow is entitled to receive Rs. 3,000 per annum from the estate.'
He therefore rejected this application for an interim injunction for the reason that it was not a fit case in which to grant it and it is the correctness of this order that is challenged in this appeal.
5. The first contention urged by Mr. Jagadisa Aiyar, learned counsel for the appellant, was that the guardian was appointed for the entire properties left by the deceased which were treated as the properties of the minor and that consequently neither the guardian nor the co-widow could take or be paid any sums out of the income of the properties without specific directions therefor from the court. I see some force in this argument since it is common ground that the sum of Rs. 50,000, which the District Judge had fixed as the amount of the security was the estimated average annual income from entire properties of the deceased.
It would therefore be apparent that when the mother was appointed as guardian, the court intended that she should be in possession as guardian of the entirety of these properties. Mr. Ramamurthi Aiyar learned counsel for the respondent-guardian urged that under the Guardians and Wards Act, the court had jurisdiction to appoint a guardian only for the properly belonging to a minor and that as under the Hindu Women's Rights to Property Act, VIII of 1937, the two widows of the deceased became en-tilled to a half share in the estate of the deceased, ' the minor being entitled only to the other half, the court could validly appoint a guardian only for the moiety of the estate belonging to the minor.
As regards the legal position, the contention urged on behalf of the respondents is incontrovertible. But we arc not concerned here so much with what the court ought to have done as with what the court actually did and the order in that regard to which the widows were parties, was not varied in appeal. There is no doubt whatsoever that the order directed the guardian to take possession of and manage the entire properties left by the deceased. This is indicated not merely by the amount of security which the guardian was directed to furnish but also by the reservation as regards the rights of the widows which I have extracted earlier. It is this reservation that has been responsible for controversies since that date. I cannot however leave this part of the case without observing that I fail to see what stood in the way of the court below then and there deciding what the rights of the widows were.
6. One thing however is clear that the court did not decide against the widows in the sense of negativing their claims to their shares. They were not ncgatived by the order in O. P. No. 67 of 1953 dated 27-1-1954, for they were the subject of express reservation. The matter was again brought up before the court in I. A. No. 34 ot 1955 and the learned Judge had another opportunity of determining the nature of their rights so as to avoid controversies in future. It was however left in the same position by the Order dated 16-2-1955 the court neither negativing their rights nor determining them.
7. In these circumstances, the question that next arises is whether the guardian was entitled to appropriate to herself a fourth share of the rents and give a like amount to her co-widow. It is no doubt true that the appellant had in the affidavit in support of O. P. No. 67 of 1953, admitted that the widows were entitled to maintenance and had suggested a sum of Rs. 3,000 as a reasonable amount therefor payable to each of them hut the court of course was not bound by his figure and in my opinion, if the widows had to be paid maintenance it could only be, in view of the orders passed in O. P. No. 67 of 1953, by application for directions.
8. The narrow question which was brought up, for consideration in I. A. No. 74 of 1956 was whether the guardian could appropriate a fourth share of the income and give over to her co-widow another such share without specific orders of court in that behalf, notwithstanding that the widows might have a claim under the Hindu Women's Rights to Property Act, 1937, and admittedly they had a right. My answer to this question is that the guardian had no such right and that the course open to her was to have applied for directions.
9. Though technically correct, this however would be a very unsatisfactory, position considering that the rights of the widows were never negatived but their determination was always put off for reasons not easily intelligible. I therefore intimated to counsel for the parties that in this view of mine I would myself hear arguments and decide the rights of the widows so that the decision of the court might rest on substantial grounds, and not merely on dry technicalities. Learned counsel on both sides agreed to this course and though strictly speaking the determination of the rights of the widows is not very germane to the decision of the point raised in I. A. No. 74 of 1956 from which this C. M. A. arises, I have with the concurrence of counsel heard arguments on the question reserved by the learned District Judge in the orders dated 27-1-1954 in O. P. No. 67 of ,1953 and 16-2-1955 in I. A. No. 34 of 1955 since 1 considered that this would eliminate uncertainties and some portion at least of the controversy between the parties.
10. I would only add that even the court below could even in disposing of I. A. No. 74 well have ascertained the extent of the rights of the widows in the properties and on that basis determined the property of these debits in the accounts.
11. It is common ground that under the Hindu Women's Rights to Property Act, XVIII of 1937, as amended in Madras, the widows together would under Section 3 (1) be entitled to 'the same share, as a son in the property of the deceased where the property was the separate property of the deceased and the latter dies intestate'; and under Section 3 (2) to the interests of the deceased where the property is coparcenary properties and the husband dies. I have already extracted a passage from an affidavit of Kuppathammal and a denial by the widows regarding the deceased having left a will.
I am informed that the genuineness of validity of this will, was challenged and when the present appellant put forward rights as testamentary guardian appointed under the alleged will of the deceased, the matter was brought up to this court where it was held that assuming this will to be genuine as the property of the deceased was admittedly coparcenary properly in which the minor and an interest the will would not be operative. In view of these proceedings learned counsel for the appellant desired me to proceed for the present purpose on the assumption that there was DO operative will barring the widow's rights. On this basis, the share to which the two widows would be entitled would be a half of the entire estate is also common ground.
12. The point however urged was that the right conferred by Act XVIII of 1937 as amended in Madras had been extinguished by the repeal of Act XVIII of 1937 by the Hindu Succession Act, XXX of 1956. The positive provisions of this later Act conferred rights Of succession provided for by it only in regard to deaths occurring after the commencement of that Act in June 1956 (vide Ss. 8 and 10). Obviously these provisions cannot apply to the present case as the deceased died long before the commencement of this Act. Section 31 of Act XXX of 1956 which came into force on 17-6-1956 effects a repeal of Act XVIII of 1937 and there is no saving in Act XXX of 1956 itself of any rights conferred or privileges which had accrued under the repealed enactment.
If matters stood thus, it might be that any rights conferred by the repealed enactment would cease to be enforceable by reason of the repeal, the position being that under the Hindu law as distinct from the statute the widows would not take any share in the property of the deceased in the presence of a son. The effect of this repeal as obliterating all rights conferred by the repealed, enactment is of course subject to the provisions of Section 6 of the General Clauses Act, X of 1897. This enacts to quote only the relevant words :
'Where this Act, or any Central Act .....made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not....(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.'
The narrow question therefore is, did these widows acquire any right or did any such right accrue to them under the repealed enactment, for if the answer to this were in the affirmative the repeal effected by Section 31 of Act XXX of 1956 would not affect them in the enjoyment of the rights which they acquired or which accrued to them. It was urged by Mr. Jagadisa Aiyar learned counsel for the appellant that the widows, had not acquired any rights, nor had any rights accrued to them under Act XVIII of 1937 and that what all they had under the repealed enactment was a right to take advantage of the conditions of the Statute and as they had not thus perfected the rights under Act XVIII of 1937 its repeal deprived them of any advantage which they could have obtained under Act XVIII of 1937.
Learned counsel relied for this purpose on the general principle of law as laid down by the decisions extracted in Craies on Statute law at page 323 (5th Edn.) as to the effect of the repeal where a provision such as Section 6 of the General Clauses Act did not apply. The passage on which reliance was placed was a statement by Tindal C. J. in Kay v. Goodwin, 1830-6 Bing. 576 at p. 582 (A), where dealing with the effect of a repeal without an express saving before the Interpretation Act, 1889, the learned Judge said :
'It take the effect of repealing a statute to be to obligate it as completely from the records of the parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.'
It was just to remedy this situation that the provisions of Section 38(2) of the Interpretation Act, 1889, corresponding to Section 6(c) of the Indian General Clauses Act, 1897, were inserted. The result of this provision is to make into a general rule what had been a common statutory form of saving and to substitute a general statutory presumption as to the effect of an express repeal for the canons of construction therefor adopted'. In regard to construction of Section 38.(2) of the Interpretation Act corresponding to Section 6(c) of the General Clauses Act, learned counsel relied on the decision of the Privy Council in Abbot v. Minister for Lands, 1895 AC 425 (B), where Lord Russel L. C. said:
'The mere right ......... existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right cannot properly be deemed a 'right accrued,' within the meaning of the enactment.'
On the principle laid down by these words learned counsel contended that Section 3 of Act XVIII of 1937, conferred on the widows a right which merely enabled them to claim partition but that until that right was asserted either by a demand for a share or by ' actually filing a suit for partition, the right was inchoate and imperfect, that in the present case this condition had not been fulfilled and that therefore no right was acquired by nor did any right accrue to the widows as to be capable of surviving the repeal. I am wholly unable to accept this interpretation as to the scope of the rights conferred by Act XVIII of 1937. Its language is clear and precise.
(12a) In the case of the separate property of the last male owner Section 3 (1) enacts that the widow or all the widows, together in case of a plurality of the deceased shall be entitled to the same share as the son and under Sub-sec. (2) of the section in the case of coparcenary property she or they were to have the interest of the deceased. The vesting in either case is absolute, in the sense that the statute does not impose any condition or require any formalities to be complied with before the share or the interest becomes vested.
It might be that if the exercise of the rights conferred by the enactment is obstructed or the enjoyment of the rights conferred is disputed by any hostile act the widows might be compelled to resort to courts to vindicate their right but this clearly does not import into the right any inperfection or render the rights created inchoate in any manner. Learned counsel referred me to the decisions of this court in which it has been held that the enactment of Act XVIII of 1937 did not impair the common law right of a widow to maintenance and that she had an option either to claim maintenance under the Hindu law or to the share conferred on her by Act XVIII of 1937.
But these in my judgment has no bearing on the question I have to consider as to the effect of the repeal. The case before the Privy Council in 1S 95 AC 425 (B), strongly relied- by Mr. Jagadisa Iyer was in relation to a right which became enforceable only when certain statutory conditions were fulfilled and admittedly there are none such here. In the circumstances, therefore, I am clearly of the opinion that the repeal effected by Section 31 of Act XXX of 1956 does not in any way impair the rights conferred on the widows, viz, to the one fourth share each in the estate of the deceased by Act XVIII of 1937.
The entire argument before me proceeded on the basis that the widows had not asserted their rights by claiming a share, but as I have reached a conclusion adverse to the appellant even on that basis I have not considered it necessary to investigate as to whether there had been in this case a claim to a share by the widows under Act XVIII of 1937 when that enactment stood unrepealed.
13. In my judgment therefore the widows were each entitled to a fourth share of the income from the estate of the deceased. In this view the payment of the fourth share to the senior widow and the retention of her fourth share of the income by the guardian were in order and there can therefore be no injunction restraining the guardian from making similar payments.
14. This however does not preclude the petition for the removal of the guardian being proceeded with on the allegations found in the petition I. A. No. 73 of 1935.
15. The appeal fails and is dismissed. But in the circumstances of the case there will be no order as to costs.