(1) The plaintiffs are the appellants. The first plaintiff is the widow of one Govindaswami Mudaliar and the second plaintiff is his daughter. This Govindaswami Mudaliar left a son by his first wife and he is the respondent to the appeal and defendant to the suit. Govindaswami Mudaliar died on 21-11-1953. He and his son Narayanaswami (respondent) were members of a joint Hindu family which owned the properties mentioned in the plaint. The suit was brought for partition and possession of a half share in the family properties as the share due to the first plaintiff who claimed her husband's share under the Hindu Women's Rights to Property Act, 1937. On behalf of the second plaintiff a maintenance provision of Rs. 20 per month and marriage expenses or Rs. 2000 were asked for.
(2) The respondent resisted the suit on the strength of a settlement deed dated 17-12-1953 executed by him in favour of the first appellant which, according to him was the result of a panchayat arrangement. It was pleaded by the respondent that this deed was registered at the instance of the first appellant and was in full settlement of all her claims against her husband's joint family properties. Other defences were raised with reference to the cash dealings, moveables and jewels mentioned in the plaint as joint family properties which it may not be necessary for us to refer to in any detail.
(3) The learned Principal Subordinate Judge found that the settlement deed dated 17-12-1953 was binding upon the plaintiffs and not liable to be set aside and consequently he held t hat the suit for partition was not maintainable and dismissed it.
(4) Mr. Ramaswami Aiyangar' learned counsel for the appellants raised a question of law apart from the attack upon the settlement deed Ex. B.
5. His argument was that the Hindu Women's Rights to Property Act, 1937 had taken away the right to claim maintenance by widows or coparcenrs and consequently the only right to which the first plaintiff was entitled was a right to claim the share due to her under the Act of 1937. In support of this argument he relied upon the principle that maintenance was allowed to members of joint families under the Hindu law only in recognition of the fact that they were excluded from taking a share at the partition of joint family properties. Statements contained in the text books on Hindu law--Mayne's Hindu Law, tenth Edn by Srinivasa Aiyangar, page 828, and Golapchandra Sarkar Sastri's Hindu law--to this effect were relied upon. He also relied upon Sarojinidevi v. T. Sri Kristna, ILR (1945) Mad 61 : (AIR 1944 Mad 401), where a Bench of this court had recognised the force of this reason for granting maintenance to execluded members of joint families. There Wadsworth and Patanjali Sastri, JJ., had to consider the question of the rights of a widow in the Madras State. The question for their decision was thus stated by them :
"The question accordingly arises whether notwithstanding the right of a share in the non-agricultural properties of the family allowed to her under the Hindu Women's Rights to Property Act, 1937, the widow of a deceased coparcener is still entitled to any right of maintenance as under the ordinary Hindu law."
(5) In answering this question in the affirmative the learned Judge considered that the right of maintenance to a Hindu widow under the ordinary Hindu law was only a compensation for her exclusion from inheritance and as this ground would be longer be available after the passing of the Hindu Women's Rights to Property Act, 1937 she would not be entitled to maintenance after the passing of the Act.
(6) Before examining the soundness of this view we may point out that the observation was obiter since on the date when the claim was made in that case the widow was not entitled to claim a share in the agricultural properties of the joint family which right she acquired only by legislation in 1947. Even otherwise the question what right a widow could claim in the joint family property of her husband after the Act of 1937 cannot be decided solely with reference to the principle under which such maintenance was granted to excluded members of Hindu joint families. In our opinion it must be considered with reference to the language of the Act of 1937. The scope of that enactment is very material because even conceding that the original right of maintenance granted to Hindu widows under the ordinary Hindu law was as compensation for exclusion for inheritance, the question still remains how far that exclusion has been remedied in the At of 1937. If for example the Act of 1937 placed the widow on a par with other coparceners of the joint family in respect of property rights, there may be good reason for concluding as the learned Judges did, that after the passing of the Act of 1937, the widow could not claim maintenance under the ordinary Hindu law. But, it is well established now by a number of decisions of this Court that the right acquired by the widow under the Act of 1937 was not full coparcenary right. She was not placed on a par with the other coparceners in respect of joint family properties. The restricted nature of the rights conferred upon her under the Act of 1937 has come up for consideration in numerous decisions of this Court and we do not think it necessary to refer to them since it is well established that the Act of 1937 did not place the widow on a par with the other male coparceners of the family entitled to claim a share in partition. Indeed the effect of the Act of 1937 has been considered in more than one decision of this Court on this very point and we may refer to a Bench decision in Ratnasabapathy v. Saraswathi Ammal .
(7) After considering the rights conferred on a widow under the Act of 1937, the Bench in that case held that it enlarged the rights of a widow only to a limited extent, namely, to ask for partition of her husband's share which she would be entitled to hold and enjoy as a Hindu woman's estate. The Bench held that this right which was conferred upon her did not alter her position and status in the joint family and she did not become a coparcener merely by becoming entitled to the interest which her husband possessed in the joint family properties. In coming to this conclusion the Bench considered the word "interest" occurring in S. 3(2) of the Act of 1937 and the learned Judges held that it did not mean or connote that all the right, title and interest which her husband had were vested in her by reason of the enactment. For instance they pointed out that the right of action to question an alienation which the husband had would not survive to the widow merely because she could claim the interest which her husband had in the joint family properties. The Bench specifically ruled that the widow's general right to be maintained out of the joint family estate had not been taken away by the Act of 1937. We are in respectful agreement with this conclusion for other reasons also. First we would point out that the Act itself does not make any specific reference to the widow's right of maintenance. Secondly, much hardship might be caused by taking away the right of maintenance and insisting upon widows claiming only a share which belonged to their husband in the joint family estate having regard to the nature of the properties owned by the joint family. Take for instance a case where the family owned only property which could be enjoyed by personal cultivation alone. We can visualise the situation where the widow, having alienated the sympathy of the brothers or other male members of her husband's family, would find it impossible to arrange for personal cultivation of the properties which may be allotted to her in a partition. Take again the case of a joint family where the only asset is a family business. After the death of the husband, the widow, if she is to get a share in the family business on partition would find it sometimes impossible to control the business to take part in it unless male members of her husband's family were friendly to her. What may appear to be a right conferred upon the widow in such a case will really turn out to be a liability.
(8) We are not basing out conclusion upon the argument of difficulties which may be experienced by a widow in the enjoyment of her husband's share on a partition. This argument is only one of the reasons which has impressed us as justifying the wisdom of the Legislature in not taking away the general right of maintenance which a widow was entitled to under the ordinary Hindu law by enacting the 1937 Act. The main ground however on which we come to this conclusion is that there is no provision in the Act of 1937 which either expressly or by implication takes away the right of maintenance of the widow. If the argument of Mr. Ramaswami Aiyangar were correct, viz, that the right to claim a share substituted the right of maintenance, we would expect specific mention of this in the enactment. This question was also considered by a Bench of the Andhra Pradesh High Court in J. Varahalamma v. J. Ammathalli Naidu, , where all the relevant authorities have been examined. We have come to the same conclusion to which that Bench has come, and, if we may say so, we are respectful agreement with the reasoning adopted by that Bench. We therefore hold that the Act of 1937 did not deprive the widow of her general right of maintenance under the ordinary Hindu law and she is free to choose either the general right of maintenance or the specific right conferred upon her by the Act of 1937, whichever was more favourable to her.
(9) The next argument of Mr. D. Ramaswami Ayangar was that the arrangement by which certain properties were given to the first appellant under the settlement deed, Ex. B. 5 did not amount to releasing her right to claim a share on partition under the Act of 1937. In support of this argument he referred to the circumstance that in the settlement deed no specific reference is made to this right of the widow to claim a share on partition.
(10) It is true that a panchayat was held within a month after the death of the husband and the widow was not asked to join in the execution of the deed which came to be executed as the result of the panchayat. It is also true that the properties allotted to the widow under the settlement deed would not be equal to the share which she was entitled to claims as her husband's heir under the 1937 Act. But, in our opinion, the following circumstances amply make out the contention of the respondent that the arrangement was come to not in respect of the claim made for maintenance on behalf of the second plaintiff but the claim made by the widow for a share in the joint family properties. The settlement deed recites in para 2 that the panchayatdars were called upon to arbitrate at the request of both the parties viz, the widow and her step-son. No specific mention is made in the settlement deed as to the nature of the claim made by the widow as a result of which the panchayat was convened.
The tamil words used "........." do not necessarily point to a claim for maintenance. Of course learned counsel pointed out to us that the right conferred upon the widow to enjoy the land and the shop and a portion of the house given to her under the settlement deed was a mere life estate and the widow was not entitled to alienate them. We are unable to see how the nature of the estate conferred upon the widow by the settlement deed in decisive on the question whether she made a claim merely for maintenance and not for partition. It may be remembered that the Act of 1937, though it gives right of partition to the widow, merely granted her to widow's estate in the properties allotted to her under the partition. Therefore the nature of the estate conferred upon the widow under the settlement deed cannot determine the nature of the claim made by her.
(11) What the position would be by reason of the enactment of the Hindu Succession Act, 1956 is not a matter arising for our consideration now. The limited question we are called upon to decide is whether the settlement deed was the result of a claim for maintenance alone and consequently we would be justified in concluding that the acceptance of the settlement deed did not imply the giving up of the right of partition and to claim a share under the Act of 1937. None can plead ignorance of the law as an excuse. Of course the law gives special protection to pardhanashin ladies in the matter of avoidance of transactions into which they enter without independent legal advice. In this case we have evidence to show that the father of the first appellant was advising her and taking all steps necessary to get the settlement deed executed. More than this, we find that before the registration of the settlement deed the widow had taken legal advice and a notice had been issued by a lawyer on her behalf on 21-12-1953. In this notice a demand is made for partition of the joint family properties, obviously referring to his claim of the widow asking for her husband's share in the joint family properties under the Act of 1937. True no mentions made in this notice of the execution of the settlement deed four days earlier.
It was only after this notice was served upon the respondent that the settlement deed was not registered and the receipt Ex. B. 10 was executed on 28-10-1953. This receipt recites the facts of execution of the settlement deed on 17-12-1953, the issue of a notice through an advocate on 21-12-1953, the registration of the settlement deed subsequent to this notice and the acceptance of the settlement deed by the widow. It specifically recites also that in view of these facts the widow was giving up her claim as set forth in the lawyer's notice dated 21-12-1953. These circumstances together with the evidence which is available in the case amply justify the view taken by the learned Judge in the court below that by the arrangement embodied in the settlement deed and by the acceptance of the properties given under the settlement deed the widow had given up her right to claim a half share in the joint family properties under the Act of 1937. We accept this finding as correct.
(12) The last argument advanced by Mr. Ramaswami Aiyangar was that even if the widow had elected to accept the properties given under the settlement deed in lieu of her claim for partition such election would not be binding on her as it was not made with full knowledge of her rights. We have already indicated the events which took place at or about the time when the settlement deed was executed and subsequently registered. These events belief the assertion that the lady was not aware of her rights. Whenever a person has the right to elect between two rights and opts for one of them will full knowledge of the circumstances such option made cannot be retracted unless there are circumstances indicating that the election was made in ignorance of the real rights. No such principle applies here. We reject this argument also as having no force.
(13) In the result, the appeal fails, but, as the dispute is between members of the same family there will be no order as to costs. The court-fee due to Government on the appeal memorandum would be paid by the first appellant.
(14) Appeal dismissed.