1. This appeal has been referred to the Full Bench at the instance of my learned brother Krishnaswami Nayudu J. The facts that led up to the reference may briefly be stated. For convenience of reference the following genealogy may be extracted:
Hanumanthappa Gangappa (died 1940) =Saranamma =Nagamma
(2nd Wife-Deft.2) (Plaintiff) | |
Parappa alias |
(Defendant 1) |
| | |
| | |
Gowramma Thippamma Chennamma (Piff.2) (Piff.3)
2. The persons shown in the genealogy constituted members of a joint Hindu family. At the time of the death of Gangappa in 1940 the family owned 15 acres of wet land called 'Gonchi' lands irrigated by channel and well, 14 acres of well-fed land and 120 acres of red soil dry land and two nouses. Subsequent to his death, from and out of the agricultural lands the family acquired item 3 (house), a sum of Rs. 5000 the amount of fixed deposit standing in the name of the second defendant, outstanding amounting to Rs. 2000 and the agricultural produce consisting of grains harvest-ed and kept in the house. In addition the family is alleged to own moveable properties mentioned in the inventory prepared by the Commissioner, Ex. A. 2. The plaintiffs, i.e., the widow of Gangappa and her two unmarried daughters Thippamma and Chennamma filed O. S. No. 4 of 1948 on the file of the court of the District Judge of Anantapur for partition and possession of the first plaintiff's half share in the non-agricultural properties of the family and for maintenance of Rs. 150 per month for the plaintiffs.
The first defendant is the son of Hanumanthapa, a cousin of Gaugappa. The 2nd defendant is his wife. They pleaded that the first plaintiff would be entitled to a share only in the non-agricultural properties existing at the time of the death of Gangappa and that she could not claim a share in all the items acquired by the family subsequent to his death from the income of the agricultural properties. They also pleaded that the moveable property was highly exaggerated in the plaint schedule. They averred that the claim for maintenance was rather exaggerated. The learned District Judge on the evidence found that all the properties mentioned in the plaint schedule were joint family properties, that though the third item, a house, the fixed deposit amount, the outstanding and the produce from the lands were all acquired subsequent to the death of Gangappa, the first plaintiff would be entitled to a share in them as at the time the share was claimed they were all non-agricultural property. He also held that the moveables mentioned in the inventory prepared by the Commissioner were all joint family properties in which the first plaintiff had a share.
He furtner held that the net annual income from the family agricultural properties would not be less than Rs. 3500 and on that basis he fixed a maintenance of Rs. 40 per month to the first plaintiff and to plaintiffs 2 and 3 at Rs. 30 per each per month. The learned Judge decreed the suit accordingly. The defendants have preferred the aforesaid appeal against the decree and judgment of the court of the District Judge of Anantapur. The plaintiffs. preferred a memorandum of objections asking for an enhanced rate of maintenance. The appeal came up before our learned brother Krishnaswami Nayudu J. The learned Judge accepted the findings of the court below; but in view of the alleged conflict between the judgments in -- 'Subba Naicker v. Nallammal', (A) and -- 'Chinniah Chettiar v. Sivagami Achi', AIR 1945 Mad 21 (B) and other judgments referred to in the order of reference, placed the matter before the learned Chief Justice for constituting a Pull Bench. The entire appeal was posted before us for disposal.
3. Learned counsel appearing for the parties did not question before us the findings of fact arrived at by the learned District Judge except in regard to the moveables inventoried in Ex. A. 2 which I shall deal with at a later stage. Learned counsel for the appellants contended that Act 18 of 1937 (hereafter called the Act) which regulates the right of the first plaintiff to succeed to her husband's interest in the joint family property applied to property other than agricultural land and therefore she cannot claim any right or interest in the agricultural property or the accretions therefrom. The answer of the learned counsel for the respondents may be stated thus. The demise of a member of a joint family leaving a widow to step in his shoes under the Act does not in itself effect a partition in the family. The joint family continues as before and its properties, whether agricultural or otherwise, and accretions therefrom would constitute and continue to be its properties. If her husband were alive he would be entitled to a share in all the properties possessed by the Joint family at the time the partition was effected.
The right of the widow who steps into his shoes is coextensive with that of her husband in regard to property other than agricultural property existing at the time when she seeks to work out his interest. To express the same idea differently, the crucial date for working out her interest is the date when she seeks to enforce her right" and she would be entitled to share in the properties of the joint family other than agricultural property, possessed by that family on that date irrespective of the pre-existing character of that property or the source from which it was acquired.
4. To afford a satisfactory evidence solution to the problem raised it would be convenient to consider the question form three aspects:
(1) What were the rights of Hindu widow in her husband's interest in the joint family property under Hindu law before the Act?
(2) What were the changes effected by the Act in respect of Her right?
(3) What was the impact of the decision of the Federal Court in 'In the matter of the Hindu Women's Rights to Property Act, 1937', AIR 1941 PC 72 (C) on the Hindu law so modified 'vis a vis' her rights?
5. The rights of a widow under general Hindu law in the joint family property were well settled. Under the Mitakshara school, a wife of a coparcener becomes a member of the family though she does not attain the status of a coparcener. In remote antiquity her claim to a share was recognised; but the later development of law, perhaps due to her subordinate position in the family, reduced the content of her rights and confined it to a claim for maintenance from and out of the joint family property. But her husband's interest in the family property would pass by survivorship to the other members of the family. In essence her right to maintenance was attached to property for it is payable from and out of the property of the joint family and under certain circumstances it could be made a charge on the joint family property. As a corollary to the aforesaid state of law it follows that the quantum of maintenance would depend upon the number of sharers in the joint family, the extent of its property and other circumstances obtaining at the time when she seeks to enforce her right.
In the words of Govindarajachari J. in --'Audemma v. Varsdareddy', AIR 1949 Mad 31 at p. 33 (D):
There will be no difficulty in recognising that, as a necessary and logical consequence of the nature of the right possessed by the widow, her maintenance would be dependent upon the varying fortunes of the family."
What is then the effect of the Act on the legal rights of a widow of a deceased coparcener? It may be convenient at this stage to read the relevant provisions of Act 18 of 1937. The preamble to the Act indicates that the said Act was passed, "to give better rights to women in respect of property". The relevant provisions of the Act read:
"Section 3(2): When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies intestate having at the time of his death an interest in a Joint Hindu 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."
The aforesaid provisions were the subject of judicial scrutiny- To appreciate the scope of the said provisions it is necessary to consider the various decisions on the subject. In -- 'Saradamoal v. Bubbarama Ayyar', AIR 1942 Mad 212 (E)
Venkataramana Rao J.. held that a widow of an undivided member of a Hindu Joint family takes the same interest in the joint family property (excepting such properties as would fall under the category of agricultural lands) as her husband himself had, subject to the restrictions placed on her powers by Section 3(3) of the Act. The learned Judge observed at p. 213:
"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 purpose 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.....But the Act has taken away that rule of survivorship and allowed the property to descend to his wife."
In -- 'Natarajan Chettiar v. Perumal Animal', AIR 1943 Mad 246 (P), Horwill J. held that where the widow of the payee of a promissory note endorses the note in favour of another, the endorsee need not procure a succession certificate in favour of the widow before instituting a suit on the note. The reason for his conclusion stated by the learned Judge was as follows:
"I agree with the learned advocate for the respondents that the widow does not obtain the right given under this section by survivorship. She was not a coparcener before her husband's death and she was not one afterwards. I do not however think that it follows that because the widow does not obtain her right by survivorship that she must obtain it by inheritance. The effect of Section 3, Clauses (2) and (3) may be regarded as a survival of the husband's persona in the wife, giving her the same rights as her husband had except that she can alienate property only under certain circumstances. As the widow did not inherit her right, no succession certificate is necessary."
The same learned Judge expressed the legal position thus in -- Satyanarayanacharlu v. Narasamma', AIR 1943 Mad 703 (G):
"The effect of the death of a coparcener with regard to property other than agricultural land is that the widow stands in the shoes of her deceased husband, and that although she is not a coparcener, she has the rights of her husband, who was a coparcener. She is a member of the-joint family and the son is the proper person to bring a suit on behalf of the joint family of which his mother is a member."
These decisions were considered by a Division Bench of this Court consisting of Rajamannar C. J. and Krishnaswami Nayudu J. in -- 'Seethamma v. Veorana Chetty', (H). There at page 789 the learned Judges summarised the position of a Hindu widow under the Act as follows :
"In our opinion, the status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under the provisions of the Act is not that of a coparcener, but that of a member of the joint family with certain special statutory rights. The death of a coparcener who is a member of a Hindu joint family does not effect a severance or disruption of the joint family, merely because he leaves behind him a widow who has certain statutory rights under the Act. The widow cannot be regarded in any sense as the widow of a divided member.
The result is that the joint family will continue as before except that the widow would have a special limited statutory right. Because the Joint family continues, its well-recognised incidents will also continue, namely, the right of the Kartha to represent the family and to be in management of its affairs. We do not understand the effect of the Act is to confer larger rights on the widow of a deceased coparcener than the rights which the coparcener certainly would have been entitled to if lie were alive. Now, a coparcener cannot demand from the Kartha an account of the management of the joint family except in special circumstances, e.g., fraud, misappropriation, etc. It does not stand to reason that though the coparcener would not have that right, his widow would have it".
I respectfully agree with the observations of the learned Judges. Another Division Bench of this court consisting of Sir Lionel Leach C. J. and Shahabuddin J. in -- 'AIR 1945 Mad 21 (B)', held that a widow under the Act succeeds to her husband's fluctuating interest in the joint family property and therefore her share should be worked out as on the date when she filed the suit for partition. At p. 22 the learned Chief Justice observed :
"A coparcener's interest is not a fixed interest. It is subject to alteration. For example, it is affected by the death of a coparcener, or by the adoption of a son by a coparcener.....The section does not give the plaintiff any greater rights than those possessed by her husband and, when she sought partition, the joint family had been increased by the adoption of a son by the head of it."
An exhaustive, and if I may say so, a lucid exposition of the nature of a widow's right under the Act is found in -- 'Subbarao v. Krishna Prasadam', (I). There pending a suit by a widow of a Hindu Mitakshara deceased coparcener against her husband's brothers for partition of her husband's share in the family properties under the provisions of the Hindu Women's Rights to Property Act, she died and an application was preferred on behalf of her minor daughter for bringing her on record as legal representative and continuing the suit. The application was contested as not maintainable on the ground that the cause of action for partition 'under the Act was personal to the widow and that it would not survive to her daughter and that the Act could not be construed as extending the rights conferred on a widow to the case of her daughter upon her death. The learned Judges accepted the contention.
After considering the law on the subject, they summarised the principles as follows at pp. 230-231:
"To sum up, Section 3(2) of the Act does not perate as severance of interest of the deceased coparcener; the right which a widow gets under that section is not as heir of her deceased husband; it is a statutory right based on the recognition of the principle that a widow is the surviving half of her deceased husband; that the incidents of that right are those specified in the Act; that such right is one personal to the widow and comes to an end on her death; that the estate does not, on her death, devolve on her husband's heirs; and that the right of coparceners to take by survivorship is suspended as against the widow of a deceased coparcener and such right reasserts itself on her death."
I find myself in full accord with the legal position so stated.
6. The Act therefore has conferred a new right Ion the widow of a deceased coparcener in modification of the pre-existing law. Section 3(2) of the Act does not bring about a severance of interest of the deceased coparcener. Certainly the widow is not raised to the status of a coparcener though she continued to be a member of the joint Hindu family as she was before the Act. The joint family would continue as before subject only to her statutory right. The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced, namely, that she continued the legal persona of the husband till partition.
From the standpoint of the other male members of the joint family, the right to survivorship was suspended. The legal effect of the fiction was that the right of the other members of the joint family would be worked out on the basis that the husband died on the date when the widow passed away. She would have during her lifetime all the powers which her husband had save that her interest was limited to a widow's interest. She could alienate her widow's interest in her husband's share; she could even convey her absolute interest in the same for necessity or other binding purposes. She could ask for partition & separate possession of her husband's share. In case she asked for partition her husband's interest should be worked out having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the family during her lifetime on her demise the succession would be traced to her husband on the basis the property was his separate property. If there was no severance, it would devolve by survivorship to other members of the joint Hindu family. This conception of the legal persona of the husband continuing to live in her steers clear of many of the anomalies and inconsistencies that otherwise would arise.
7. But the more difficult question is what is the effect of the decision of the Federal Court in -- 'AIR 1941 PC 72 (C)', on the right of the widow to succeed to the Interest of her deceased husband in the joint family property. In -- 'AIR 1941 PC 72 (C)', the Federal Court ruled that the Hindu Women's Rights to Property Act (Central Act 18 of 1937) and the Hindu Women's Rights to Property (Amendment) Act (Central Act 11 of 1938) did not operate to regulate succession of agricultural land in the Governor's provinces and it operated to regulate devolution by survivorship of property other than agricultural land. Gwyer C. J. at p. 74 observed:
"It is true that Section 3 of the Act does not use the word 'survivorship' and it may be that the widow taking a share under the Act does not become a coparcener with the other sharers; but there can be no doubt that in the cases in which it gives to the widow of a deceased coparcener a right to a share in the joint property which she did not possess under the pre-existing law, it takes away to that extent the benefits of the rule of survivorship which would have accrued to the remaining coparceners."
In confining the scope of the Act to non-agricultural property, the learned Chief Justice made the following pertinent remarks at p. 75:
"The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the court is bound to construe the word 'property' as referring only to those forms of property with respect to which the legislature which enacted the Act was competent to legislate; that is to say, property other than agricultural land".
The effect of the judgment was, therefore, that the 'property' in the Act should be read as the property other than agricultural land. If so read, the relevant clause in Section 3(2) will read:
"an interest in a Hindu joint family property other than agricultural property".
If so read, the scope of the Act itself is confined to property other than agricultural property and therefore succession to agricultural property is not regulated by the Act.
An argument similar to that now advanced before us was addressed to another Bench of this Court consisting of Satyanarayana Rao and Viswanatha Sastri JJ. in -- ' (A)'. There a coparcener died in June 1942. The widow instituted a suit against his brother for partition and separate possession of a half share in the family properties basing her claim on the rights conferred upon her by the Hindu Women's Rights to Property Act, 1937. The properties left by the deceased were agricultural lands. The question arose whether she would be entitled to share the produce derived from the lands after her husband's death. The learned Judges held that she was not entitled to share either in the agricultural lands or the produce from the agricultural lands derived subsequent to her husband's death. The reason for the decision is found at p. 192. The learned Judges observed:
"The learned Subordinate Judge decreed a share in these items on the ground that the rights to property should be determined as on the date on which the plaintiff claimed a share by instituting the present suit for partition of the items and not as on the date of the death of her husband. Under the Act, as it would be seen from the language of Section 3(2) the right is created in favour of the widow of a deceased coparcener in the property governed by the Act, her interest being the same as that of her husband.
As it has now been finally settled by the Federal Court that the Act does not apply to agricultural land in the Governor's Provinces, it must be taken that when Krishnaswami died in June 1942, his interest in the agricultural land survived to the other coparcener, namely, the first defendant and that thereafter he became the sole and exclusive owner of the agricultural lands. The produce of the lands thereafter belongs exclusively to the first defendant. If on the date of the death of her husband the plaintiff had acquired no interest in the agricultural lands by virtue of the provisions of the Act, it is difficult to see how she could claim a share in the produce of the lands which upon the death of her husband became the sole and exclusive property of the first defendant."
I respectfully agree with the observations of the learned judges. Emphasis was laid upon the statement found at p. 193 to the effect:
"On the plain language of Section 3 of the Act we have no hesitation in holding that the rights should be determined whether claimed by succession or survivorship as on the date of the death of the husband of the plaintiff and not on the date of the partition suit"
and it is contended that the proposition of the law so LAid down by the learned Judges is inconsistent with the settled law on the point. If that statement is read in the context in which it is made, it is clear that they were only considering the question as to what interest devolves on the widow and the crucial date when it devolves. That is made clear by the succeeding sentence wherein they state:
"If as stated above by reason of the death of Krishnaswami Naicker no interest devolved on the widow, the plaintiff, in the agricultural lands, under the ordinary Hindu law which continues to operate the first defendant acquired the entire rights in the agricultural lands by survivorship and the income of such lands would also partake the same character".
They did not consider, or purport to decide, that in regard to interest in the non-agricultural lands devolving on the widow, the share of the widow should be worked out as on the date of her husband's death. This decision is a dear authority for the position that on the death of the husband the agricultural properties go by survivorship to other members of the joint Hindu family and the husband's interest in the non-agricultural property devolves upon his widow. I do not see any conflict between this judgment and the Judgments wherein it was held that the share of the widow should be worked out and the properties of the family ascertained as on the date when she claims her share. In the present cage to the extent of her husband's interest in non-agricultural lands, that principle will equally govern the situation i.e., for the purpose of giving her share, the interest of her husband in non-agricultural properties along with the accretions thereon will be ascertained as on the date when the suit is filed.
8. The law may therefore be summarised thus. By reason of the Federal Court decision, the scope of the Act is confined to properties other than agricultural lands. It follows that "interest" In Section 3(2) of the Act must be construed as interest only in such property. If so construed, the Act left untouched the rights of the widow and other male members of a joint Hindu family in respect of agricultural property as they existed under the general Hindu law. To put it differently, there are two devolutions, as it were in respect of the interest of the deceased husband in the joint family property. So far as the interest in agricultural property is concerned, the law of survivorship would continue to govern the right of succession. But in respect of non-agricultural property, the provisions of the Act would apply. Thereafter the courses of devolution of the two kinds of property would be different, the one governed by the Hindu law and the other by the provisions of the Act.
If so, the widow cannot have obviously any right to claim a share under the provision of the Act in respect of agricultural property, though her pre-existing right, under general Hindu law to claim maintenance is observed. This is because for the simple reason that no new rights were conferred on her under the Act as interpreted by the Federal Court in respect of agricultural property as the property is outside the scope of the Act.
9. The argument of the learned counsel for the respondents that the connotation of the words "interest" and "share" are different and in the working out of the share of the widow the husband's interest in the Joint family non-agricultural property existing at the time of partition whether the whole or any part of it was a subsequent accretion to agricultural property or not, should be taken into consideration, if I may say so, ignores the limited scope of the Act and the meaning attributable to the word "interest" in Section 3 of the Act. If "interest" means, as we should hold in view of the decisions of the Federal Court, "interest in non-agricultural property of the deceased husband", the entire basis of the argument would disappear. The interest of the husband at the time of his death in the non-agricultural pro- perty alone would devolve on her as the rest was taken away by others by survivorship. Her right to share would therefore be confined to that interest in property and worked out in respect of that which devolved on her and the accretions arising therefrom.
10. It was then contended that the aforesaid view would lead to an anomaly of the same property being joint family property for the purpose of maintenance and ceasing to be one for the purpose of working out a share. If there was an anomaly, it was only' caused by the statute; but in my view no question of anomaly arises for the right of the widow under the Act is confined only to the interest in the non-agricultural property left by the husband.
11. Indeed if the argument of the learned counsel be accepted, it would enable scheming members of a joint family to circumvent the provisions of the Act altogether. To illustrate, if a person died having an interest in non-agricultural property, the other members of the joint Hindu family by convening the same into agricultural property will be enabled to contend that at the time the share is demanded the entire property of the joint family is agricultural land and therefore she is not entitled to a share. Such a result could not have been contemplated by the Legislature. I would therefore hold that a widow under the Act can claim a share in the interest of her deceased husband in the non-agricultural properties owned and possessed by the family at the time of his death and also in the accretions arising therefrom, irrespective of the character of the accretions.
So too, she will not be entitled to a share in the interests of her husband in agricultural property though at the time she claims a share the agricultural lands are converted into non-agricultural property or that the accretions from the agricultural property are in the shape of non-agricultural property. The two devolutions are distinct. The said position is not inconsistent with the other principle, recognised by decided cases for at the time the suit is filed for partition, the interest of the husband in the non-agricultural property and the accretions therefrom would be ascertained, having regard to the circumstances obtaining at that time. I therefore hold that the decision in -- '(A)', has been rightly decided and there is no conflict between that decision and any other decisions cited before us.
12. If so, it follows that the first plaintiff would not be entitled to a share in the third house in the money lending transactions amounting to Rs. 2000 standing in the name of the first defendant or the second defendant or in the fixed deposit receipt for Rs. 5000 in the name of the second defendant or in the item of agricultural produce in the Commissioner's inventory Ex. A. 2 acquired by the family subsequent to the death of the plaintiff's husband from and out of the income from the agricultural lands.
13. But in regard to moveables, the learned counsel for the appellant contended that the items mentioned in the inventory. Ex. A. 2 other than the aforesaid agricultural produce have not been proved to be the moveables of the family existing at the time when the plaintiff's husband died. As the learned Judge took the view that all the moveables acquired subsequent to Gangsppa's death being non-agricultural property were liable to partition no attempt has been made to ascertain whether any one of those items existed at the time the plaintiff's husband died or were acquired from the income from non-agricultural property.
The parties are agreed that this question may be allowed to be decided in the final decree proceedings. We accordingly direct the same.
14. In the memorandum of objections the plaintiffs claimed a higher rate of maintenance. As I have already held that the plaintiff is not entitled to a share in properties acquired from and out of the income from the agricultural lands subsequent to the death of her husband, the said properties should be added to the other agricultural assets of the family for the purpose of fixing the rate of maintenance. If so added, I think it is reasonable that another sum of Rs. 10 may be given to the first plaintiff towards her maintenance. If so, she would get Rs. 50 per month instead of Rs. 40. The decree of the lower court is modified as per the directions given above. In other respects, except in regard to costs, the judgment of the lower court will stand. The parties will pay and receive proportionate costs here and in the court below.