1. This Letters Patent Appeal has been filed against the judgment of Ismail J., (as he then was) in A. S. No. 369 of 1970, on the file of this Court, which arose out of the suit 0. S. No, 220 of 1967, on the file of the Sub-Court, Coimbatore.
2. The plaintiff filed that suit against her brother the first defendant in the suit, for partition and separate possession of her alleged one fourth share in the suit properties. The suit properties originally belonged to Venkatachalam Pillai who died in the year 1942, leaving behind him his wife Achikannu Animal a son Chockalingarn the first defendant and a daughter the plaintiff. Achikannu Animal died in the year 1963. The plaintiff who is sister of Chockalingam, has claimed a one-fourth share in the suit properties on the basis that on the death of Venkatachala in 1942, her mother Achikannu Animal became entitled to a half share in the suit properties that as a result of the coming into force of Central Act XXX of 1956, the said half share which was inherited by Achikannu Ammal under the provisions of the Hindu Women's Rights to Property Act, 1937 (hereinafter became enlarged into an absolute estate of Achikannu Animal, that on the death of Achikannu Animal that interest devolved on her son the first defendant and her daughter the plaintiff in equal moieties and that therefore the plaintiff is entitled to claim a one fourth share in the suit properties.
3. The claim of the plaintiff was resisted by her brother, Chockaiinga, the first defendant. His case was that the suit properties belonged to the joint family of Venkatachala and himself, that ever since the death of Venkatachala In 1942, the First defendant alone has been in possession and enjoyment of the properties absolutely, that the first defendant's mother Achikannu Animal, though had a right to claim a half share in the suit properties by virtue of the provisions of the Act, did not in fact assert that right, that she did not file any suit for partition during the life tune that not even a unilateral declaration expressing her desire to divide from the other coparcener was made by her, and that, therefore, her right to claim a partition of a half share in the suit properties stood extinguished and the properties went to the first defendant by survivorship.
4. The second defendant was an alienee from the first defendant and as she cannot claim any better right than the right to which the first defendant is entitled, it is not necessary to consider her claim separately. Defendants 3 to 5 are the children of the first defendant. Thus, the main point for consideration by the trial Court was whether, on the death of Achikannu Animal, the plaintiff became entitled to a one-fourth share in the suit properties, or whether whatever right Achikannu Animal had, went to the first defendant by survivorship. Though other questions also arose for consideration before the trial Court, it is not necessary to deal with those matters, in this appeal, as the contraversy between the parties is confined as to whether the first defendant became the owner of the entirety of the properties on the death of his mother, or wh2ther the plaintiff could claim, as one of the two heirs to her mother a half share in the interest accrued to the mother under S. 3(2) of the Act. On this question, the trial Court held that whatever interest the plaintiff's mother acquired under See. 3 (2) of the Act, had become absolute by virtue of Section 14(1) of the Hindu Succession Act, (Central Act XXX of 1956), that therefore succession has to be traced through Achikannu Animal in respect of the half share in the properties which she had inherited under the provisions above said, and that the plaintiff, being one of the two heirs is entitled to claim a one-fourth share in the entirety of the suit properties.
It rejected the, first defendant's contention that as the mother, during her lifetime, did not assert her right to partition by filing a suit or at least by issuing a unilateral notice that she had become divided from the first defendant, she could not be taken to have 'possessed, any specific interest in any of properties, that a mere right to claim a share by partition could not be taken to be an 'interest' in specific properties and that as the mother had continued to remain right from the death of Venkatachala Pillai till her death, in the joint family without seeking any division, whatever interest she had would automatically revert to the first defendant who was the only surviving member of the family by survivorship. According to the trial court, even though the plaintiff's mother had not asserted her right to partition during her lifetime, it could not be said that she had no interest in the suit properties, that whatever interest she acquired under S. 3(2) -of the Act became absolute under S. 14(1) of & Hindu Succession Act, and that once S. 14(1) operated, there was no question of the rule of survivorship applying. In this view, the trial Court held that the plaintiff was entitled to claira a one-fourth share in the properties as one of the two heirs to her mother who had earlier acquired a half share in the suit properties, which was the share her husband possessed at the time of his death.
5. The matter was taken up in appeal by the defendants to this court in A. S. No. 369 of 1970 and it came up before Ismail J. (as he then wa4). The learned Judge, relying on his own earlier decision in C. S. No. 57 of 1964, dated 5-12-1968 (Dhalakshmiammal v. Official Trustee, Madras), held that even with regard to the interest of a Hindu widow under S. 3(2) of~ the Act, the provisions of S. 14(1) of the Hindu Succession Act, would be applicable. It is the correctness of that view of the learned Judge which has been challenged in this Letters Patent appeal, by the first defendant.
6. According to Mr. Kesava Iyengar, learned counsel for the appellant, the decision in C. S. No. 57 of 1964, will not apply to the facts of the present case, for, in that case, the suit was filed by a Hindu widow, hereself during her lifetime for partition to work out her right acquired under Section 3(2) of the Act and it was during the pendency of that suit she died and her daughters were brought on record as legal representatives, which is not the case here. The, submission of the learned counsel is that the right acquired by a Hindu widow under the provisions of the Act is only to claim the same share as the husband's if a partition takes place, and such a right cannot be an 'interest' in any specified property, and that if any step has been taken by the widow to make that right a specific interest and to reduce that interest into possession, then it can be said that she is possessed of some property attracting the operation of Section 14(1) of the Hindu Succession Act; but, where she continues to remain in the joint family and does not assert her right to use for partition, such a right is extinguished on the death of the widow, and whatever right she had would survive to the joint family.
7. Mr. Kesava Iyengar, in support of his submission, referred to the Full Bench decision of this Court in Parappa v. Nagamma, : AIR1954Mad576 . In that case, the Full Bench dealt with the scope of S. 3(2) of the Act, and Subba Rao, J., (as he then was) speaking for the Full Bench, has observed that Section 3(.2) of the Act does not bring about a severance of interest of the deceased coparcener, that the Hindu widow is not raised to the status of a coparcener though she continues to be a member of the joint family as she was before the Act, that the Hindu conception that a widow is the surviving half of the deceased husband is based on the fiction that she continues the legal persona of the husband till partition, that from the standpoint of the other male members of the joint family the right to survivorship is. suspended till the lifetime of the widow and that the legal effect of the fiction is that the right of the other members of the family would be worked out on the basis that the husband died A the date when the widow passes away. According to Mr. Kesava Iyengar, if as per the decision of the Full Bench, there is no disruption in the family and the widow continues to be a member of that joint family and the right of survivorship is merely suspended during her lifetime it is clear that if the widow as in this case, without asserting her rights and filing a suit for partition dies, the survivorship, which stood suspended during her lifetime will automatically get revived and her share will go to the joint family by survivorship.
8. The decision of the above Full Bench has been referred to with approval by the Supreme Court in Lakshmi Perumallu v. Krishnavenamma, AIR 1961 SC 825, Satrugham v. Saburajpari, AIR 1967 SC 9 and Controller E. D. Madras v. Kuppuswami, ' : 108ITR439(SC) , and, therefore, the principle laid down by the above Full Bench decision cannot any longer be doubted. However, it is significant to note that the above Full Bench decision was rendered at a time when the Central Act XXX of 1956 (Hindu Succession Act) had not come into force. The Full Bench has dealt with the question as to what happens if a Hindu widow dies without working out her rights acquired under Section 3(2) of the Act. Under the law then in force, an interest devolving on a Hindu widow under the provisions of Section 3(2) of the Act, was taken as a limited interest, known as a 'Hindu woman's estate' and on the termination of that estate, the rule of survivorship will automatically apply. The position would be different if widow had during her lifetime worked out her rights devolved on her under Section 3(2) of the Act by filing a suit and reducing the property relatable to her share to her possession. It is on this, basis the Full Bench held that conferment of same rights on a Hindu widow as those of her husband, under Section 3(2) of the Act, will not automatically result in a civision of the joint family, and so, long as a partition is not sought for by the widow, the family should, be taken to be joint and if the widow dies without working out her rights, the property will revert to the joint family. Thus, the Full Bench merely states the legal position arising as a result of a Hindu widow who had acquired certain rights under Section 3(2) of the Act on the death of her husband, dying without seeking a partition. The said decision, however, cannot be said to hold the field even after the enactment of Central Act XXX of 1956 (Hindu Succession Act) which has introduced Section 14(1) which reads as follows-
'14 (1), Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or ' in lieu of maintenance or arrears of maintenance or by gift from any person whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana imsniediately before the commencement of this Act..'
9. According to Section 14(1), any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, will become her absolute property. There cannot be any dispute that the plaintiff's mother, in the case on hand, obtained a widow's estate on the death of her husband as contemplated by Section 3(3) of the Act. The question whether under Section 14(1) of Central Act XXX of 1956, the widow's estate becomes absolute or not on the coming into force of that Act, cannot be taken to be covered by the Full Bench decision.
10. According to Section 3(2) of the Act, where a Hindu dies leaving at the time of his death an interest in, the Hindu joint family property, his widow shall, subject to the provisions of subsection (3), have in the property the same interest as he himself had. The interest the husband had in this case was a half share in the suit properties and that half share devolved on his widow on his death. Of course, this right is subject to sub-section (3), which says that the widow does not become the absolute owner, but she shall have only a limited interest known as a 'Hindu woman's estate'. A conjoint reading of both sub-sections (2f and (3) of Section 3 of the Act would clearly indicate that a Hindu widow shall have in the property of the joint family the same interest as the husband had. Of course, that right is curtailed to the extent indicated in sub-section (3). It is true, in this case, the plaintiff's mother did not assert her rights or work out her rights by filing a suit for partition during her lifetime. But the question is not as to what. she did or did not do, during her lifetime, but as to what was the interest she had on the date of the commencement of Central Act XXX of 1956. Admittedly, an that date, she had the same interest in the suit properties as her husband had at the time of his death. It is not in dispute that her husband had a half share in the suit properties at the time of his death. That half share devolved under Section 3(2) of the Act, on the plaintiff's mother. That interest which she acquired had not been lost by her or extinguished m the date of the commencement of Central Act XXX of 1956. 'The question whether she lost her right by not filing a suit for partition during her lifetime will arise only if Section 14(1) had not intervened in the meanwhile. If Section 14(1) has operated even before her death, in 1963, then, there is no question of any rule of survivorship applying. Oft the date when Section 14(1) came into operation, admittedly, the plaintiff's mother had, in the suit properties, the same interest as her husband had, that is, a half share in the suit properties. According to the learned counsel for the respondent that interest which devolved on her would get enlarged by virtue of the provisions of Section 14(1). However, according to Mr. Kesava Iyengar, Section 14(1) will operate only when there is a specific interest in the property and a mere right to sue for partition in respect of the property cannot be taken to be a specific interest in the property. But, as already pointed out, Section 3(2) of the Act does not give a mere right to sue for partition to the Hindu widow, but it gives the entire interest of the husband to the widow on his death, subject to that being limited to the provisions of sub-section (3) thereof. If the contention of Mr. Kesava Iyengar is accepted that the word 'property' occurring in Section 14(1) of Central Act XXX of 1956 will have to be understood as meaning a specific property' or a 'specified interest in a property, in that event that section will lose much of its force or application and the object with which that- section has been introduced in the statute will be substantially defeated.
11. Mr. Kesava lyengar himself concedes that if the plaintiff's mother, during her lifetime had worked out her rights which she had acquired under Section 3(2) of the Act, the position would have been different and in such a case Section 14(1) of Act XXX of 1956 may operate but not in a case where the widow h9d not asserted her rights and had not chosen to claim partition of her share. This submission of the learned counsel seems to place much emphasis on the date of death of the Hindu widow and how the property will devolve on her death. But as we have already pointed out, the point of time at which the applicability of Section 14(1) has to be tested is the date when the Act came into force. On 17th June 1956, the Act came into force and admittedly, the interest acquired by the plaintiff's mother under Section 3(2) of the Act had not been extinguished or surrendered on that day. We are not inclined to agree with the learned counsel for the appellant that Section 14(1) will have operation only when the widow had an interest in a specified property or a specific interest in a property and not when she is in joint possession along with other members of the family.
12. It cannot be disputed that in a joint family possession of 'the joint family properties by one coparcener s for the benefit of all the coparceners.Therefore, the first defendant and his mother should be taken to have been in joint possession of the properties. In our view, even a joint interest owned by the Hindu Widow and her joint possession will attract the operation of Section 14(1) of Act XXX of 1956. Unless it is
possible to say that on the date of the commencement of Act XXX of .1956 the widow had no interest 'in any of the joint family properties, which it is not possible to say on the facts of this case where admittedly the plaintiff's mother had not renounced or relinquished her rights acquired by. her under Section 3(2) it is not possible to say that S. 14(1) cannot have operation. It is also now well-settled that the word possession' occurring in Section 14(1) does not mean only~ physical possession, but includes also legal possession. If the first defendant and his mother can be taken to be in joint possession, under law , then such interest and joint possession of the plaintiff's mother in the suit properties will be enlarged into an absolute estate under 'Section 14(1).
13. The above appears to be the view taken by Ismail, J. (as he then was) in his earlier -decision in C. S, No. 57 of 1964 dated 5-12-1968 (Dhanalakshmiammal v. Official Trustee, Madras). which has been followed by him in this case as well. The said view of Ismail, J. has been approved by a Bench of this court in Narasimhachari v. Andalammal, : AIR1979Mad31 .-
14. According to Mr. Kesava Iyengar, learned counsel for the appellant, the judgment of Ismail, J. (as he then was) was on a different set of facts, that in that case a Hindu widow herself had filed a suit during her lifetime for partition and that, therefore, it was held that as the widow had chosen to work out her rights by filing the suit for partition it should be taken that she had beconig entitled to a specific interest in the properties 6ut that principle will not apply to the case on hand, where a Hindu widow died without working her rights by filing a suit for partition during her lifetime, Though such 4 -distinction may be material in the matter of determination of the question of succession on the death of, a Hindu widow, that distinction appears to have no impact on the applicability of Section 14(1) of Central Act XXX of 1956. The only thing we have to consider for deciding the question of applicability of Section 14(1) is to see whether the Hindu widow had an interest in any 'property' as defined in the Explanation to that section. Admittedly, by virtue of the provisions of Section 3(2) of the Act, the widow in this case had acquired the same interest in the properties as her -husband had at the time of his death. It cannot be disputed. that the husband had a half share in the properties at the time of his death. On his death that half share devolved on his widow. That is an interest in immovable property and that interest was possessed by her on the date of the commencement of Central Act XXX of 1956. Therefore, we do not see how the applicability of Section 14(I) can* be avoided in this case merely on the ground that either before or after the commencement of the Hindu Succession Act, the widow kept quiet without working out her rights by filing a sit it for Partition. If a Hindu widow had an interest in a Property as in this case, dot interest would become absolute by virtue of the statute, not at her volition. Therefore, the operation of the statute cannot be decided with reference to the conduct of the widow after the 'commencement of the Hindu Succession Act. Even if a Hindu widow had not chosen to file a suit for partition after the commencement of the Succession Act, the interest which she possessed at the time of the commencement of that Act having become enlarged into an absolute estate, there is no necessity for her to file a suit for partition for her half share in the properties which was acquired by her as a limited owner as a 'woman's estate', and therefore, the rule of survivorship can no longer apply with reference to such interest.
15. In Narasimhachari v. Andalammal, : AIR1979Mad31 , the Division Bench held that the interest acquired by a Hindu widow under Section 3(2) of the Act gets enlarged on the commencement of Central Act XXX of 1956. But that Was a case where the widow made an unequivocal demand for partition and therefore the learned counsel for the appellant submits that the principle laid down in that decision will apply only to a case where the widow during her lifetime had made an unequivocal demand for partition and thus making her interest, acquired under Section 3(2) of the Act, defined and specific.
16. In Mothi Mondi Ambalam v. Alagammal, (1975) 88 MLJ 551, another Division Bench of this court, however, dealt with a case where no demand for partition was made by a Hindu widow. In that case, the Division Bench held that the mere absence of a demand for partition or the fact than such a widow secured her interest in a partition prior to 1956,, would not make any difference in so far as the nature and value of her vested right acquire-d under Section 3(2) of the Act is concerned. The Division Bench further )observed in that case that once the interest of a post 1937 widow prior to the, Hindu Succession Act in the coparcenary is conceded as a vested statutory right, then she should be deemed, at any rate, to be in. constructive, though not physical, possession of her shere, which is 'property, in the eve of law on the date when the Hindu Succession Act came into force. According to the learned Judges in that case, the right which a Hindu widow got under Section 3(2) of the Act gets automatically crystallised on the commencement of Central Act XXX of 1956, and that right gets enlarged by operation of Section 14(1) of the 1956 Act. Though the learned counsel for the appellant, Mr. Kesava Iyengar, seeks a reconsideration of the said decision on the ground that the decision of the Full Bench in Parappa v. Nagamma, : AIR1954Mad576 has not been adverted to, we are in respectful agreement with the view taken by the Division Bench in Mothi Mondi Ambalarn v. Alagammal, (1975) 88 Mad LW 551. The same view had been taken by Ramamurti, J. in Soliappa . Mudaliar , V. Meenakshiammal, (1070) 1 MLJ 383 .
17. In the light of the above discussion, we have to uphold the view taken by Ismail, J. (as he then was) that the plaintiff in this case is entitled to a onefourth share in the suit properties. In the result, the Letters Patent appeal fails and is dismissed. There will however be no costs.
18. Appeal dismissed.