1. These two appeals arise out of the same suit O. S. No. 12 of 1945 originally instituted in the Court of the District Judge, Bellary, and thereafter transferred to the file of the Court of the Subordinate Judge, Bellary and numbered as O. S. No. 3 of 1947. A. S. No. 739 is by the plaintiffs and A.S. No. 758 by defendant 1. The suit was for partition of immovable and movable properties and connected reliefs. Plaintiff 1 is the widow of one Rao Bahadur Papayya Setty who died on 21st October 1937. She was his second wife. Plaintiff 2 is his son and defendants 2 and 3 are his daughters by plaintiff 1. He had also by her two other daughters, namely, one Saraswatamma (P. W. 3) married on the date of the institution of the suit and one Triveni who died before suit. By his first wife, Papayya Setty had two sons, namely the defendant 1 and one Seetharama Setty. After his death, the members of the family continued to be joint till the end of august 1940 when Seetharama Setty left the family taking a quarter share of the family properties. On 28th August 1940, Seetharama Setty executed what is styled a deed of relinquishment and a release by way of partition in favour of defendant 1 and the two plaintiffs (EX. P. 1.). Though styled as a deed of relinquishment, it is common ground that it was really in the nature of a family settlement. The terms of the settlement briefly were as follows: Seetharama Setty took towards his one-fourth share the properties described in Schedule A to the document and the properties described in Schedule B thereto were taken by the remaining three members of the family. These were left in the possession of defendant 1 who was the manager of the family. Seetharama Setty relinquished all his rights to the Schedule B properties as well as to the jewels which were on the person of his sister-in-law, i. e., the wife of defendant 1, and, on the person of his step-mother plaintiff 1. He was declared to be not liable for the expenses of the marriages of his stepsisters, namely, the daughters of Papayya Setty by plaintiff 1 and it was agreed that plaintiff 1 should meet the expenses of their marriages. The only right which Seetharama Setty reserved to himself was the right which he may have after her life time in the share of the properties to which plaintiff 1 was entitled. The document was signed also by plaintiff 1 and defendant 1, for himself and as guardian of his brother plaintiff 2. As some of the contentions of either side are based upon the language of the clauses of this deed, they will be set out later on. Plaintiffs 1 and 2 continued to remain in the family house along with defendant 1 till September 1944, though the relations between plaintiff 1 and defendant 1 were not very cordial for some time prior thereto. It is common ground that on or about 19th September 1944, plaintiff 1 left the family house with plaintiff 2 and her unmarried daughters. Saraswatamma, her eldest daughter, who was married by the time and her husband continued to live in the family house for a few days thereafter but they too left the house subsequently. On 21st September 1944, plaintiff 1, through her advocate issued two notices to defendant 1 claiming partition of the family properties on her behalf and on behalf of her minor son. There was a reply by defendant 1's advocate on 30th September 1944. The suit was instituted on 24th February 1945.
2. The plaintiffs claimed a two-third share of the movable and immovable properties set out in Schedule A to C to the plaint and the family business carried on by defendant 1. Plaintiff 1 claimed a third share therein absolutely. The plaintiffs prayed that a decree may be passed dividing all the movables and immovable properties shown in Schedule A to G by metes and bounds into two parts and one part respectively, that an auditor may be appointed to take accounts of the profits of the joint family business carried on by defendant 1 from 1st September 1940 up to date on behalf of the family, that an account may be taken of the fraud and misappropriation committed by defendant 1, that a decree may be passed for the amount found due and that a Commissioner may be appointed for effecting a division of the properties. Schedule A comprised house properties, Schedule B agricultural lands, Schedule C gold and silver and precious stones, furniture and other articles and cash. B schedule related to outstandings due to the family of which the mortgages were separately set out in another Schedule. E. Schedule F comprised furniture. The machinery described in Schedule G must admittedly be treated as a part of the family house, being in the nature of fixtures. It is not necessary to traverse in detail the pleas raised by defendant 1 in his written statement as it will be more convenient to take up the items of dispute between the plaintiffs and defendant 1 seriatim and deal with the contentions of both the parties in respect of each dispute The learned Subordinate Judge passed a preliminary decree directing that the houses except item 5 of Schedule A, all the lands described in Schedule B all the items in Schedules C, F and G be partitioned into three equal shares, that accounts be taken as regards the outstandings, that the amounts realised from the debtors either by defendant 1 or by the Receiver be ascertained and defendant 1 be liable to account for the realisations made by him, that a Commissioner be appointed to go through the accounts and ascertain the family liabilities. In respect of one debt, however, namely, the debt due to one Virupakshappa, the liability of the plaintiffs for the same was kept open for decision in the suit; filed by the creditor to which plaintiffs and defendant 1 were parties. Defendant 1 was directed to render an account of his management from the date of Ex. P-1, 28th August 1940, and if it was found that defendant 1 was in possession of any moneys, the plaintiffs will be entitled to get two third share of the same. Defendants 2 and 3 were to be maintained by the estate till their marriages, and a charge was created to the extent of Rs. 20,000 against plaintiff 1's share for their marriage expenses. The debts due by the family were to be ascertained by a Commissioner after going through the accounts, and had to be borne in three shares by plaintiff 1, plaintiff a and defendant 1.
3. Mr. P. Somasundaram, the learned advocate for the plaintiffs, raised several contentions in their appeal. The first two depend upon the terms of Ex. P-1. According to him, that deed effected a severance in status inter se between plaintiff 1, plaintiff 2 and defendant 1 and plaintiff 1 became entitled to a third share of all the properties including the agricultural land. There-is very little in the language of the deed and still lees in the evidence on record to support the contention of the appellants that when Seetharama Setty left the family taking his fourth share, there was a severance between plaintiff 1, plaintiff 2 and defendant 1 inter se. The family properties were divided into two Schedules A and B, of which the properties in Schedule A were allotted to Seetharama Setty for his one fourth share and the properties in Schedule B were left for the remaining three members of the family. Clause 3 of the deed provided that these properties may be left in the possession of defendant 1 as the family manager. There was no division of the properties in Schedule B into three shares. It is now well established that when a member of a joint family separates himself from other members of a joint family and his share in the property is partitioned off for him, the remaining coparceners do not necessarily become separate in status and they may continue to be coparceners without any special agreement amongst themselves and to enjoy as members of a joint family what remained after such a partition of the family property. Whether the remaining members continued to be joint or not is a question of fact to be decided inter alia from the way in which they carried on their affairs after the departure of the previous coparcener, see Palani Animal v. Muthuvenkatachala, and Balakrishna v. Ramakrishna . In this case there is clear evidence that the remaining members continued to be joint even after the execution of Ex. P-1. It is sufficient to refer to the allegation in the plaintiffs notices which preceded the suit, Exs. P-2 and P-2 (a), that after the separation of Seetharama Setty, the rest of the family continued to be joint as before. The entire plaint proceeds on the footing that both the plaintiffs and the defendants were members of a Hindu joint family in joint possession of the family properties. The business is described as the ancestral family business which defendant 1 was conducting on behalf of all the members. In para. 18 it is definitely stated that the 'joint family' had absolutely no debts whatsoever. We have no hesitation in holding that there was no division in status between the plaintiffs and defendant 1 until the date of the issue of the notices by plaintiff 1 in September 1944.
4. Mr. Somasundaram's contention that plaintiff 1 is entitled to an absolute interest in a third share of the suit properties is based entirely on the terms of Ex. P-1. Under the Hindu Woman's Rights to Property Act, her interest would only be the limited interest of a Hindu widow. But it is contended that under Clause 3 of EX. P-1 which was in the nature of a family settlement, an absolute estate was conferred on her. The material portion of Clause 3 relating to this contention is as follows:
'I or my heirs shall have no right to or interest in them (schedule B properties). You are entitled to enjoy the said properties with full and absolute rights.'
We do not agree that understood in its proper context, the last sentence above cited was intended to confer an absolute estate on plaintiff 1. In and by the clause of which it is a part, Seetharama Setty was relinquishing all his rights to the properties in B schedule and the only reservation was that covered by para. 6. After stating that he and his heirs shall, have no right to the properties in schedule B, there is the counter part of the statement that the other members of the family are entitled to enjoy them without any claims by him. It is in this sense that the words 'with full and absolute rights' should be understood. Apart from this clause, there are two other clauses which make the intention of the parties indubitably clear as regards the nature of the estate to which plaintiff 1 was entitled These clauses are clauses 6 and 6, the relevant portions of which are as follows:
'5. ...... All of us have unanimously agreed and arranged that our step-mother should meet the expenses of the marriages of our sisters aforesaid from out of her share of B schedule properties which has passed to her according to the present Hindu law in force . . .
6. Reserving the right which I may have, according to the then prevailing Hindu law, after the lifetime of my step-mother Seethamma, the third individual of us in regard to her right under the Hindu law now in force, that is to say excepting such right, I have relinquished in your favour all the remaining other rights under this document. ......'
Obviously the reference to 'the present Hindu law in force' is to the provisions of the Hindu Women's Rights to Property Act, and under that Act there could be no question of the nature of the estate to which plaintiff 1 became entitled on the death of her husband. Reading the entire document, it is clear that no larger rights were conferred on plaintiff 1 than the rights which she was entitled to under the law. Mr. Somasundaram relied upon the obligation laid on plaintiff 1 to meet the marriage expenses of her four daughters from her share as supporting his contention that the parties must have intended to confer an absolute estate on her. Otherwise, the allotment of a share to her would be practically illusory in view of the large amount of money needed for the expenses of the marriage. In our opinion, this consideration cannot affect the construction of the language of Ex. P-1. We agree with the learned Subordinate Judge that plaintiff 1 is not entitled to an absolute estate in the third share of the suit properties.
5. It must, however, be mentioned that this finding would not prevent plaintiff 1 from alienating a proper and reasonable portion of the properties allotted to her for the money required for the marriage expenses and the alienee would be entitled to the property conveyed to him absolutely. This is only in consonance with the general Hindu law under which a Hindu widow can convey full title in her husband's property by an alienation for necessary purposes.
6. The only question which remains relates to defendant 1's liability to account for his management for a period prior to the institution of the suit or probably prior to the issue of the notice calling for a partition. The learned Judge has directed him to render an account, of his management from the date of Ex. P-1 i. e., 28th August 1940. Apparently, he is to render an account to both the plaintiffs. In his judgment, however, he held that plaintiff 1 should be deemed to be a tenant-in-common to the extent of her interest in the property, but plaintiff 2 was a coparcener with defendant 1 and therefore defendant 1 would be liable to render an account to her in respect of her share of the properties. Mr. Rangaswami Aiyangar for defendant 1 takes objection to the decree in so far as it makes defendant 1 liable to render an account of his management from the date of Ex. P-1 either to plaintiff 1 or to plaintiff 2. So far as plaintiff 2 is concerned, the learned trial Judge himself did not hold that defendant 1 was liable to render an account, but evidently as he was directing him to render an account to plaintiff 1, he thought that plaintiff 3 also might get the benefit of it. But that course is indefensible. Under the Hindu law except in special circumstances, a coparcener has no right to call upon the manager to render an account of his management so long as the undivided status continues. He is not entitled to his share of the income for any period anterior to the date of the disruption of the joint status. The decree as drafted declares that both the plaintiffs will be entitled to get two-third share of any moneys that may be ascertained to be in the possession of defendant 1 as a result of the enquiry into his management from the date of EX. P.-1. In no event can plaintiff 3 be entitled to such a relief and we did not understand Mr. Somasundaram maintaining this right. The question presents some difficulty so far as plaintiff 1 is concerned. The learned Subordinate Judge held that plaintiff 1 could not be deemed to be a coparcener along with plaintiff 2 and defendant 1 and therefore she should be regarded as a tenant in common. We have not been referred to any direct authority on the point. We shall therefore refer to a few decisions in which the nature and incidents of the special statutory right conferred on a Hindu widow by the Hindu Women's Rights to Property Act were discussed. In Saradambal v. Subbarama. Aiyar, I. L. R. (1942) Mad. 630: A. I. R. 1912 Mad. 212 Venkataramana Rao J. held that the property so taken by a Hindu widow is liable for the payment of her husband's debts and is liable to be attached by her husband's creditors. The learned Judge points out that except for the restrictions on her powers by Clause (3) of Section 3 of the Act, the widow takes the husband's interest subject to the rights and obligations to that interest and that interest was the interest of an undivied member of a joint family in the joint family property :
'That clause loaves 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.'
In Natarajan Chettiar v. Perumal Ammal, : AIR1943Mad246 the widow of the payee of a promissory note endorsed the note in favour of another. It was held by Horwill J. that the endorsee need not procure a succession certificate in favour of the widow before instituting a suit on the note. The basis of his decision was that though the widow does not obtain the right given under the Act by survivorship, she does not obtain her right by inheritance either. The effect of Section 3 Clause. (2) and (3), in the learned Judge's opinion, 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 the property only under certain circumstances.'
She was of course not a coparcener before her husband's death and she was not one afterwards. The next decision to which we refer has an important bearing on the question in issue. That is also a decision of Horwill J. in Satyanarayanacharlu v. Narasamma, : AIR1943Mad708 . In that case a suit was brought on a promissory note by the son of the payee. It was found that the debt sued on was a debt due to the family and not to the payee as separate property. The defence was that under the Hindu Women's Rights to Property Act, the widow became entitled to a half share of the property and the plaintiff (the son) was therefore not entitled to bring the suit without impleading her. The lower Court accepted the defence plea and passed a decree for half the amount as the plaintiff's share in the debt. The learned Judge held that the defence plea was not maintainable and passed a decree in favour of the plaintiff for the full amount claimed. The ratio decidendi is contained in the following observations :
'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 la a member.'
In Kallian Rai v. Kashinath, : AIR1943All188 a Similar position was reached by a Division Bench of the Allahabad High Court. In that Case also the suit was on a promissory note by the son of the payee who had died leaving behind him besides the son the plaintiff, two widows and a grandson. It was proved by evidence that the payee and his son and grandson were members of a joint Hindu family and that the plaintiff and his son still continued to be members of a joint family and after the death of his father the plaintiff was the karta, of the family. In such circumstances, the learned Judges overruled the plea of the defendants that it was not open to the plaintiff, the son, alone to sue on the note without impleading the widows as well. The learned Judges held that so long as a partition had not been made at the instance of the widow in exercise of the right conferred on her under Sub-section (3) to Section 3 of the Act, the status of the joint Hindu family continues and the widow is capable of being represented in business transactions and in suits by the karta of the family. We are in entire agreement with what the learned Judges said in that case as regards the effect of the provisions of the Act. They said:
'The Act was intended to give better rights to women in respect of property--that is the preamble to the Act--but there is no indication that the Act intended to interfere with the established law relating to joint family. Whatever inroads it may have made on the doctrine of survivorship, it does not effect a statutory severance or disruption of the joint family. The widow as a member of a joint Hindu family is to have the same interest in the joint property as the deceased husband had and this devolution does not otherwise affect the joint family status unles the widow availing herself of the provisions of Sub-section (3) claims a partition. As long as she does not do so, the status of a joint Hindu family continues and although she may not be a coparcener with the other sharers as was held in In re Hindu Women's Rights to Property Act, in the sense that the principle of survivorship no longer subsists, it cannot be said that she is not a member of a joint Hindu family as long as there is no partition.'
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 karta 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 eights which the coparcener certainly would have been entitled to if he were alive. Now, a coparcener cannot demand from the karta 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. Some of the anomalies and difficulties which would arise by holding that the widow of a coparcener is in any sense of the term a tenant-in-common with the surviving coparceners are well described by the learned author of the tenth Edition of Mayne's Hindu Law at p. 721;
'To bold that the widow of a coparcener who takes his interest on his death is strictly a tenant-in-common with the coparcenary body is not to give full effect to the words in Section 3 (2), according to which she is to have 'in the property the same interest as he himself had' apart from the grave complications which it will involve. On that view, she will be entitled to an account and for a definite share of the income, while the others will not be; more than that, it will lead to anomalies and hardships in connection with the allotment of shares; and even before partition there would be separate management and representation and separate incurring of debt. But evidently the intention of the Act is only to interrupt survivorship and to protect the right of a widow so that she may have same interest as if she continued the legal persona of her husband till partition.'
We therefore hold that defendant 1 is not liable to render an account of his management for any period prior to the issue of the notices, Exs. P-2 and P-2 (a) i. e., 21st September 1944 either to the plaintiff 1 or to the plaintiff 2. The decree will be modified accordingly. No other point was raised in this appeal by defendant 1.
7. So far as the costs of the two appeals are concerned, we think the proper order to make is to direct the parties to bear their own costs, because the plaintiffs as well as defendant 1 have partly failed and partly succeeded in their respective appeals.
8. (These appeals having been set down to be mentioned this day, the Court made the following) Order : In the lower Court the costs of all parties will come out of the estate.