1. One Chinnaswami Rowth met his death in the Bommidi Railway disaster of 1920. He left Thayarammal his wife, a daughter the plaintiff and Sriramulu a baby, one or two months old. The railway company gave a sum of Rs. 2500 as compensation and with that sum Thayarammal managed to maintain herself and her children. She got the plaintiff married and made several purchases. She acquired two lands and a house described in the plaint A schedule. She reconstructed the house. She also laid out moneys in the shape of loans to third parties and the outstandings left by her are described in schedule B attached to the plaint. She is also alleged to have left some jewels which are described in schedule C. The plaintiff claimed that the properties described in the various schedules attached to the plaint were all the stridhanam properties of her mother Thayarammal and that they were her absolute properties. The claim therefore was that the plaintiff was the stridhanam heiress of her mother and that she was entitled to all the properties. Thayarammal the mother died in April 1937. Sriramulu survived her and died in 1940 leaving a widow, defendant 1 in the suit. Defendant 2 is impleaded as being in possession of some of the jewels belonging to the mother. Defendant 1's case was that the properties all belonged to Chinnaswami Rowth and were not the absolute properties of Thayarammal. The positive case put forward was that the properties were purchased out of the funds left by the plaintiff's father, Chinnaswami Rowth. The trial Court found that there was no proof that the properties were purchased with the funds left by Chinnaswami Rowth. The plaintiff did not state in the plaint wherefrom her mother got the funds with which she acquired the properties in question. At the trial it was mentioned that her mother, Ammani Ammal, gave a large sum of money to Thayarammal and that that was the source of Thayarammal's later acquisitions. Both this case of the plaintiff and the case of the defendants that the source of the purchase money was traceable to the assets of Chinnaswami Rowth were found against. It transpired that really the sum of Rupees 2500 which was paid by the railway company formed the nucleus of these acquisitions. Thayarammal seems to have been a very prudent woman. She managed the sum that was given by the railway company very carefully, lent out the moneys, purchased properties, got the daughter married, reconstructed a house; and left some properties, immovable and movable. These are the findings of both the lower Courts. On these findings the question is whether Thayarammal and the plaintiff got any right in the properties. Under the Fatal Accidents Act (13 [XIII] of 1855),
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused...and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses...shall be divided amongst the beforementioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.
2. Thus the death of the person injured is no defence and it does not absolve the party at fault from paying damages to the relatives of the deceased. The persons who are entitled to recover damages, notwithstanding the death of the injured party, must be the wife, husband, parent or child. The action should be brought for the benefit of all or any of these persons and the Court is to apportion the amount among these persons in proportion to the loss caused to each of them by the death of the deceased. Under the corresponding English Act we find a similar provision, only, instead of the Court it is the jury that has to determine the amount and to fix the proportion in which the parties entitled to the amount should divide the same. In cases where the amount is paid not through Court but by private settlement, the question is more difficult, but we have to be guided by the same principles which would have applied if the amount had been recovered by a suit or action. There are some decisions which have dealt with this question. In Bulmer v. Bulmer (1884) 25 Ch. D. 409, a sum of money was received from a railway company by way of compensation without any action having been brought under Lord Campbell's Act, 9 & 10 Vict. C. 93. The executors who realised the amount brought an action in the Chancery Division, to which all the relatives of the deceased were made parties, asking for a declaration as to the persons entitled to the money. It was held that the Court could distribute the fund among the relatives of the deceased in the same manner as a jury could have done in an action under the Act (which is against the person bound to pay the damages) and proceeded to divide the amount among the relatives. At p. 412 Chitty J. observes this:
The apportionment, however, must be made on the same principle as it would have been if the matter had been before a jury and they would require to be satisfied that injury had in fact resulted to the persons claiming damages. In this case the principle of distribution must not be one of equal division, but in proportion to the damage sustained by reason of the death.
3. There, there were six children and a widow. We may leave out of account some other relations to whom some lump sums were given. The learned Judge divided the properties giving two shares to the widow and one share each to the six children, the widow being considered to be the person who suffered the greatest injury. There are very few Indian cases dealing with the question. In Secretary of State v. Mt. Ratan Kali A.I.R. 1932 Lah. 355 the surviving members to whom the damages were awarded were the widow, a major son, a minor son and a daughter. The Court awarded Rs. 3840 and divided tie amount thus wife Rs. 1800, major son m 600; younger son Rs. 740, daughter Rs. 700. Roughly the widow was given a half of the property and the children together were given half. In Vinayak Raghunath v. G.I.P. Ry. Ry. Co. 7 Bom. H.C.R. 113, there were only a widow and a daughter and the sum Rs. 10,000 was divided, giving Rs. 7000 to the whow and Rs. 3000 to the daughter. In another case dealt with in the same judgment, out of a sum of Rs. 6500, the widow was given Rs. 2500 and the rest divided among two major sons, a minor son and a minor grandson. In Stanes Motor Ltd. V. Peter ('36) 23 A.I.R. 1936 a similar base, a sum of Rs. 6000 was divided equally between the widow and the son. There is no bard and fast rule in what proportion the amount is to be divided, where there are a number of persons suffering injury by the death of a relation on whom they were all dependent. Bearing these principles in mind, and the principle embodied in the Hindu Women's Eights to Property Act the widow and the son may be given equal shares. As between the son and the daughter grant of one-fourth to the daughter may not be justified, but the rule that is being embodied in the proposed legislation on the Hindu Law giving the daughter a half of what the son takes seems to be a very reasonable standard to adopt. That is the principle of the Muhammadan law of Intestate Succession which is supposed to be the most equitable system of distribution among the relations. In this view the plaintiff (daughter) would have been entitled to one-fifth; the son and the mother would be entitled to a two-fifth each. It is in evidence that this daughter was subsequently married at a cost of Rs. 500 and that some jewels were also made for her marriage. Her claim to one-fifth of Rs. 2500 may therefore be taken to have been satisfied by the amounts spent on her marriage. Then there remain the mother and the son.
4. The plaintiff claimed that all the properties are her mother's stridhanam properties. While denying that the properties were the mother's stridhanam properties, no alternative case was set up on behalf of the defendants that the mother gave up what was her stridhanam property in favour of her son. All that can be said in this case is that, as the daughter's claim was settled by some moneys being spent probably from the subsequent income realised from the investment of the original sum of Rs. 2500, them mother and son treated themselves as equal 9 owners of whatever remained in the family. There are no materials from which one can hold that the mother gave up during her I lifetime all her interest in favour of her son. As stated above, there is no such plea in the written statement, and the evidence that has been referred to by Mr. T.L. Venkatarama Aiyar, the learned Counsel for respondent, is not enough to show that there was any such relinquishment by the mother in favour of her son. All the purchases were made in the mother's name. Exhibit P-17 of 1930 and Exs. P-18 and P-19 of 1933 stood in her name. The patta stands in her name. Exhibit D-6, the Cist Receipt Book, shows that throughout her lifetime the cist was paid in her name. We have the bills issued for the purchase of timber for the erection of the suit house, and Ex. P-24 is a bill issued in her name. Exhibits P-24 (a) to P-24 (h), though not issued in her name, were obviously bills issued to her. It is true that in the invitation issued for the grahapravesam ceremony of the suit house the son's name was mentioned, but a widow with a son would not, even in cases where she builds a house for herself, issue the invitation in her own name but would issue it in the name of her son. That is not a ground for saying that even the house was treated as her son's property. It is true that subsequent to the death of Thayarammal the plaintiff did not immediately claim that she is entitled to her mother's properties. Reference is made by Mr. Venkatarama Aiyar to a panchayat at which the plaintiff seems to have claimed a payment of a debt due to herself in respect of a promissory note executed by the mother in her favour of a hand loan taken by the mother from her and in respect of some other sums spent by the daughter for the mother's illness. No doubt there was a panchayat and the sums claimed were found to be true, and the money paid. Exhibit D-28 is the memorandum drawn up at that time and that is signed by both the plaintiff and Sriramulu, but there is nothing to show that the properties were expressly or even impliedly admitted by the plaintiff to belong exclusively to Sriramulu. The only comment that can be made is that she herself was the heiress to her mother's property, that if all the property was her mother's property, there was no meaning in claiming the same against properties which devolved on herself. In the view that I have taken that the mother was entitled only to a half there is no such incongruity in the daughter having claimed the repayment of the sum due to her.
5. In the result I declare that the plaintiff is entitled as the stridhanam heiress o her mother to half of the properties and that defendant 1 is entitled to the other half as the widow and heiress of her husband, Sriramulu. The existence of the outstandings as mentioned in Schedule B is not denied. Of the two jewels mentioned in Schedule C, item (1) is found to be in existence and in the possession of defendant 2. Defendant 2 will be liable for the jewel mentioned as item (1) of Schedule C or its value as mentioned in that schedule. Item 2 is not proved to exist. There will be a preliminary decree directing a division in two equal shares of the immovable property mentioned in Schedule A, of the outstandings in Schedule B and of item (1) of Schedule C. The plaintiff is also entitled to mesne profits on her share. The necessary enquiries as to the income will be made and the result of that enquiry and of the division will be embodied in the final decree. Each party will bear his or her own costs throughout. (No leave.)