1. The question in this appeal is one of interpretation of Sub-section (2) of Section 3, Hindu Women's Rights to Property Act, 1937. The sub-section states that when a Hindu governed by a School of Hindu law other than the Dayabhag School or by customary law dies, having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (s), have in the property the same interest as he himself had. Sub-section (3) states that an interest devolving on a Hindu widow under the provisions of the section shall be limited interest known as a Hindu woman's estate, provided that she shall have the same right of claiming partition as a male owner. Respondent 1 is the plaintiff in the suit. She is the widow of one M.C. Thiagarajan Chettiar, who was the adopted son of the appellant and was joint with him. Thiagarajan died on 19th February 1940. On 12th June 1941 the appellant adopted defendant 3 (respondents). On 6th August 1941 respondent 1 filed this suit for partition, as she had the right to do by virtue of the Hindu Women's Rights to Property Act. The main question is whether she was entitled to a half share or only to a one-third share in the family property. She claimed to be entitled to a half share because this was the extent of the interest which her husband had is the property at the time of his death. The father-in-law maintained that by reason of his adoption of a son after the death of Thiagarajan the plaintiff's interest was only one-third. The Subordinate Judge considered that it was quite clear that the plaintiff's contention was right and ho gave her a decree for partition on the basis that she had a Hindu woman's interest one half of the estate. The question is not so simple as the Subordinate Judge imagined. In fact it is one of considerable difficulty. On a careful consideration of the very able arguments which have been addressed to us by counsel, we have come to the conclusion that the interpretation placed upon Sub-section (2) by the Subordinate Judge is erroneous and that he should only have given the plaintiff a decree or one-third of the estate.
2. For the plaintiff stress has been laid on the word 'had' with which Sub-section (2) concludes. 11, is said that as a son's widow is given the interest which her husband 'had' at the time of his death, nothing which happens afterwards can cut down that interest. This argument presupposes that a coparcener's interest in the family estate is a fixed interest and that the word 'interest' in the sub-section should be interpreted as 'share,' which is the word used in Sub-section (1). This cannot be accepted. 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, by the birth of a son to a coparcener, or by the adoption of a son by a coparcener. Lord Westbury, in delivering the judgment of the Privy Council in Appovier v. Ramasubba Ayan (1966) 11 M.I.A. 75 said:
According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of title joint and undivided property, that he, that particular member, has a certain definite share.' During his lifetime the interest of the plaintiff's husband was an uncertain one. His father might have had a son born to him. He could, of course, have fixed his share by insisting on partition, but this he did not do. 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. The question is fully discussed by the learned author of Edn. 10 of Mayne at pages 721 and 722, and we are in full agreement with the observation made there that a widow cannot be deemed to be in a better position than her husband if he had lived. This Court has accepted the principle that when a coparcener sells or charges his interest us a family estate, the alliance merely gets his interest as it stood at the date of the alienation and it is said for the plaintiff that this supports her case. We do not agree that there is an analogy. Here we are concerned with the interpretation of the statute and we are of opinion, having regard to the words used and, the nature of the interest of a coparcener in a joint family governed by the Mitakshara law that the Legislature did not intend to give, and has not in fact given, the widow greater rights than possessed by her deceased husband.
3. It has also been suggested on behalf of the plaintiff that she had demanded a partition before the adoption of defendant 8. If this were in fact the case, her claim for a half share in the property would be well founded; 'but it is quite clear that no such demand was made until after the adoption had taken place. All that the plaintiff can point to here is a letter which her advocate wrote to her father-in-law on 91st May 1941. The plaintiff has received information that her father-in-law proposed to adopt a son, and she entered a protest. She alleged that the proposal was in contravention of an agreement which has been reached between her father-in-law and her father. The concluding portion of the letter reads as follows:
My client therefore calls on you not to make as adoption in contravention of the said agreement but to fulfill it in all its terms within a week of the receipt hereof, failing which she will be obliged to enforce all the reliefs she is entitled to in virtue of the said agreement and under the Hindu Womens Rights to Property Act, by process of Court.
4. This is not a demand for partition. It is a threat to enforce her rights to partition should her father-in-law proceed with the proposed adoption. Admittedly, she made no actual demand for partition until the adoption had taken place. The appeal must be allowed and the case remanded to the trial Court to proceed with the partition in accordance with this judgment. The plaintiff will receive from the defendant costs in the trial Court based on the value of one-third of the estate. She will pay to the appellant costs in this Court based on the difference between one-half and one-third of the value of the estate.